What You Need to Know About Writing a Will That Will Protect Your Heirs

by Gary Foreman

What You Need to Know about Writing a Will photo

Don’t leave a financial mess as the last memory of you for your loved ones. A will should protect your heirs when done correctly. Take these steps to make sure your will protects yours.

It’s a subject that none of us want to think about.

Whether we’re young and just starting life or older and approaching the end, we don’t want to think about our own death. And, adding money to the mix only makes it worse.

The truth is that all adults need to think about what will happen to their financial affairs when they die. Failure to do so could leave a real mess for those who survive you.

And could cost those survivors quite a bit of money.

So let’s do something today that we don’t want to do. Let’s evaluate your estate planning and see if it’s adequate for the job. For the record, I am not an attorney, and this is not meant to be legal advice. I have been a financial planner and often referred clients to get competent legal advice. This is intended to do the same.

What are estate planning and a will?

First, let’s create working definitions for a couple of commonly used terms.

“Estate” refers to what financial and physical assets you own (or partially own) at the time of your death. “Estate planning” is what you do before your death to make sure that your wishes are followed after death.

A “will” is the most commonly used document to make your wishes known to those who survive you and any appropriate government authorities.

What do you want your estate plan to do, and what should it consist of?

We’ll begin with estate planning. You’ll need to decide what you want your estate plan to do.

You need an executor.

Someone will need to be named the “executor” or boss of your estate. They’ll assume the responsibility of executing your last wishes. That person does not need to be a lawyer. Any adult with sound judgment will do. Often a family member is chosen. But, you may want someone from outside the family, like a lawyer or bank, to do the job.

You need to provide instructions.

You’ll want something that will provide instructions on distributing your financial assets and physical property. You may want specific items to go to designated persons. Or you may want to make it clear that certain persons are to be excluded from any inheritance.

Do you have minor children? You need to designate a guardian.

If you have children, you’ll want to specify who you want to raise your kids. Remember that they’ll need someone to take care of them physically and manage their finances until they reach adulthood. Often, minor children are left financial assets in a parent’s estate.

You need to consider estate taxes.

You’ll also want to consider whether any estate taxes could apply. If so, you may be able to take steps to reduce the tax burden your heirs will face.

How can we make sure our end-of-life wishes are fulfilled?

OK, now that we’ve spent some time thinking about what we want to happen after we’re gone, let’s talk about how we make sure that it does happen.

In most cases, the primary document is a ‘will’ or ‘last will and testament.’ A will is a very specific document. It’s not a list of items with names next to them that you keep in your safe deposit box. Or post-it notes pasted on a silver tea service you want to go to little Sally.

A will is a legal document containing certain elements required by state law. While none of these elements are difficult, failure to include them could invalidate the will.

To complicate matters, each state has slightly different requirements. Make sure that your will is legal in your state of residence. And have it rechecked if you’ve moved to a new state since it was written.

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Do I need a will?

Many single adults think that they don’t need a will. Typically, they’re wrong.

Without a will, it could take months to have someone assigned to sell a car owned by the deceased or pay any bills. There could even be a problem finding someone to pay funeral expenses.

Another common misconception is that married couples can solve the problem by putting everything into joint accounts. Unfortunately, not everything can be titled jointly (think of jewelry or home electronics). And, even if everything is held jointly, what happens if both spouses go in a joint accident?

What happens if I don’t have a will at the time of my death?

Dying without a will can leave a real mess.

State law will determine who is the executor and how your property will be distributed. That might not produce the results you want. For instance, the law dictates that some inheritance goes to children before the surviving spouse in some cases.

It’s essential for unmarried couples.

State laws are a patchwork. In some places, they recognize common law marriage the same as one registered with the state. In other places, a life-long live-in partner is accorded no more rights than a complete stranger.

State laws are also problematic for couples in a second marriage. You may think that certain assets you brought into a second marriage should go to the children of your first marriage. The state might think otherwise.

Bottom line? Just about everyone who has reached adulthood should have a will.

Do I need to hire an attorney?

Being frugal, it’s tempting to want to write your own will or buy a form where you just fill in the blanks.

I usually encourage do-it-yourself efforts. But in this case, that could be a mistake. Remember that if something isn’t done right, no one will know until after you’re gone and can’t correct it. A small mistake could be very costly. This might be one of those cases where hiring a professional is good money management.

That doesn’t mean that you can’t shop around to save some money. And, if you’ve already thought about what you want your estate plan to accomplish, you’ll reduce the number of hours the attorney will spend preparing your will. That will save you some money.

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Where should I keep my will?

You’ll want to make sure that your executor has access to a copy of your will when you die. They will need it as proof that they can make decisions for you. Give them a copy of the will, or, if you’d prefer that they not see it, give a copy to your lawyer and let the executor know who the lawyer is.

Don’t put the only copy in your bank box. The bank will not let the executor enter just because they say they have a right. The bank will require proof. And that proof is locked in your box.

Planning for your estate does not need to be expensive. Unless your financial or personal affairs are complicated, getting the documents prepared isn’t that expensive. But, it is essential. Don’t leave a financial mess as the last memory of you for your loved ones.

Reviewed March 2022

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