When You Create a Will, You Create a Way Forward

Did you know it’s relatively easy to create a will? A last will and testament is one of the most important — and simplest — things you can do to protect your family. In its simplest form, a will is a legally binding document that provides instructions for the distribution of your assets (essentially, all your “stuff”) after your death. 

But more than 68 percent of all Americans lack a will, or any kind of estate plan at all! And when you die intestate (without a valid will or trust), the probate court takes over. That means your loved ones will face additional heartache as they sort through your affairs. They’re also at risk of excess taxation, and expenses could soar—especially when the lawyers get involved. 

We always recommend that you consult with a trusted estate attorney when creating your estate plan. But you can get started on creating your own will with the simple framework below. Then, if you have a simple estate and prefer the DIY approach, you can make it valid online, for free, with our LegacyPlanner. Or you can take your framework to an attorney to complete the process.

The importance of estate planning cannot be overstated, so let’s jump right in.

How to Create a Will: Key Points

Your will is a crucial estate planning document designed to avoid legal conflicts while ensuring your wishes are carried out. To create a legally binding will, you must:

• • Be 18 or older

• • Be of sound mind, meaning you must have sufficient mental capacity to understand your actions, understand what property you own, etc.

• • Sign the will in the presence of 2 or more witnesses who ARE NOT beneficiaries of your will.

• • All signatures must be done in front of a notary, who will notarize all three signors in a “Self-Proving Affidavit.”

• • Ensure it is clear that this is your legal will. The simplest way to achieve this is to title it, “Last Will and Testament,” and include your full legal name somewhere near the beginning of the will. If this is an update or a new will, you must mention that this most recent document invalidates any previous ones. Include any other names you’ve used—including maiden names, name changes, or nicknames.

Getting it All Together

One key element of a will is a description of how all of your property should be distributed after your death. So when you create your will, the first step is fairly simple. You’re going to make three lists:

Make a comprehensive list of all your assets.

That includes any real estate or collectibles (art, guitars, stamps, Barbies, wine, etc.). It also includes personal items—everything from your car to tools to heirlooms like Aunt Betty’s quilt and family photos. You’ll want to list firearms; jewelry; furniture; bank and brokerage accounts; life insurance; cryptocurrency and NTFs. Even your pets go on this list, because under law, they’re “property.” (The good news is, you can decide who will take care of them when you’re gone.)

Make a list of your important documents and where to find them.

Include insurance policies, safe deposit box documents, annuity contracts, stock and bond records, property and vehicle titles, deeds (housing, land, cemetery), birth and adoption records, marriage license, divorce records, tax returns, mortgage and escrow account documents, partnership and corporation agreements, military documents, pension documents, and proof of loans both made or owed.

Make a list of all your digital information.

That means credit card accounts, bank accounts, email accounts, blogs, and social media accounts. Don’t forget internet and cable service providers, Cloud-storage sites, cell-phone providers, computer passwords, college savings accounts, and mortgage providers. Include associated usernames, passwords, and PINs—but keep this information secure!

Name Guardians

If you have people who depend on you, naming guardians is the most important aspect of making a will. Whether a minor child or disabled adult, you can ensure someone you trust will be there to care for them.

It goes without saying, but choose guardians carefully. Take into consideration things such as their relationship with your children or dependent, as well as their personal qualities. Are they responsible? Will they raise your children according to your values? Would they be willing to take on this massive responsibility?

As with listing beneficiaries, be sure to include full legal names and contact information.

And finally, don’t just assume they can and will step into this role—ask them.

Name an Executor

After your death, someone will need to manage the handling of your will, along with the remaining affairs associated with your estate. This person is called the executor—and you get to choose them. 

An executor is responsible for:

• • Notifying heirs, government agencies, courts, creditors, banks, and other parties of your death. That includes obtaining death certificates from the funeral home/state and providing them as needed.

• • Reporting to the probate court

• • Managing your estate

• • Settling your debts

• • Distributing your assets to beneficiaries

Your executor should be someone you (and others) can trust implicitly. They need to be responsible, a good communicator, and willing to help. As with potential guardians, be sure to ask them first.

Make a List of Beneficiary Designations

Next, make a list of all your beneficiary designations and applicable accounts. A beneficiary designation is a legal document that identifies who will inherit an asset after your death. It is normally signed when a financial account is opened. A beneficiary designation generally applies to financial accounts, including checking and savings accounts, brokerage accounts, retirement accounts, and insurance accounts.

Note: Keep in mind that a beneficiary designation overrides a last will and testament. That means if your will states, “I leave the balance of my checking account to Nonprofit A, 101 Anystreet, PA” but you signed a beneficiary designation that names your grandson, your grandson will get the balance of your checking account.

Name Your Beneficiaries

The next step in the will-creation process is to identify your beneficiaries. These are the people or organizations designated to receive something from your estate.

Specificity counts!

When you list your beneficiaries, be sure to use their full legal names. That includes Jr., Sr., and numbers (i.e., John Doe III). Include middle names where applicable, as well as married and maiden names (i.e., Jane [Smith] Doe). Indicate their relationship with you —spouse, child, sibling, cousin, friend, etc. Include contact information where available.

The same goes when listing nonprofit organizations. Be sure to use their proper name, current address, and include their Nonprofit Employer Identification Number, or EIN. If you’re not sure what that is, check their website or give them a call.

Note: Using proper names and including other key details is critical to preventing confusion or legal disputes over who gets what. The list of lawsuits, arguments and exorbitant legal bills caused by wills that were missing these key details is massive. And that doesn’t include family squabbles and hard feelings!

Decide Who Gets What

You must also be specific about who gets what. It’s often easiest to utilize a “tangible assets list” for personal property, and insert the proper name next to the requisite item.

Experts recommend that you do not include the reasoning for your gifts in the will — that often leads to hard feelings or awkward situations, since a will becomes public when it enters probate. Instead, you can leave behind a sealed, addressed note, or talk to the person privately.

When it comes to financial assets, keep in mind that you don’t always need to list exact figures or amounts. For instance, you can state, “I leave the remainder of my estate, after all bills and taxes, to my son John Doe II.”  Or “I gift 25 percent of my brokerage account to Nonprofit A.” And remember, beneficiary designations take precedence over your will. Coordinate them accordingly.

Alternates

Now that you’ve named beneficiaries, you need to name alternates, or backup beneficiaries, in case some people do not want or are unable to accept the property or assets you intended to leave them. 

Shape Your Legacy

A last will and testament is a wonderful place to shape your legacy through a gift to your favorite charity. You can leave a transformative gift (called a ‘bequest’) to a nonprofit organization through your will — it’s the simplest and most popular estate gift. You could also make a gift to your favorite nonprofit through a beneficiary designation. 

Write a Residuary Clause

While not required, a residuary clause makes a good addition to your will. A residuary clause is a legal way to cover anything that was not left to a specific beneficiary, got forgotten in the assets list, or was not adequately described in the will. It allows you to leave these remainders to a beneficiary, or leave it up to the executor to handle.

Provide for Your Pets

As we mentioned earlier, you can leave instructions for your pets’ care. Although you cannot name a legal guardian (pets are considered property), you can specify who you’d like to care for them. You can also leave assets for their continued care.

Provide Funeral Instructions

Although it’s optional, you can use your last will and testament to provide any funeral or burial instructions. That can include favorite songs or hymns, religious considerations, and instructions on how or where you’d like to be buried. Be sure to include any Veteran’s information—you or your heirs may be eligible for certain benefits, including a headstone and graveside service.

Make It All Legal

Although you must verify the laws in your specific state, in general, your will must be signed and witnessed by two people who are not beneficiaries before it becomes a binding legal document.

Although state requirements vary, one common practice is to use a notary public to complete this step. You would sign your will at the notary in front of two witnesses (who are not named in the will). Then the witnesses (testators) would also sign the will, after which it would be notarized.

If you’re unsure about the laws in your state, consult with an experienced estate attorney to ensure your last will and testament is legal and valid.

Storing Your Will

Your final step is also a critical one: notifying the executor and your loved ones that your will is complete, and ensuring they have access to it. If your will cannot be found, all your hard work will be undone, and your estate will face hefty probate court delays and expenses.

Safe Storage

Many people opt to store their original will, along with a copy, in a secure place like a fireproof lockbox, safe, or a filing cabinet. You can also store a copy with your attorney. It’s a good idea to give your executor a copy of the will, too.

It’s usually a bad idea to store a will in a safe deposit box at a bank. Your heirs may have trouble gaining access after your death, even those named on the bank account.

In any case, ensure your executor and your loved ones know the location of your will and have access to it.

Cloud Storage

If you’ve completed your will online, or have a digital copy, you can store your will in the “Cloud.” Again, it’s imperative that your loved ones and executor have access to it. Communicate where your will is stored, any specific instructions it contains, and instructions on how to access it.

Finally, any communication regarding your will with your loved ones and executor should be in writing, so that you (and they) have a record of it.

Keeping Your Will Updated

It’s very important to note that a last will and testament is not a once-and-done project. You must update your will to account for life events. That includes marriage, divorce, childbirth, adoption, stepchildren, grandchildren, sale of a business or property, moving and more. You may even need to update your will to take advantage of tax law changes. You don’t always need a lawyer to add to a will — sometimes it can be done through a simple legal document called a codicil.

Conclusion

A will is a key document in the estate planning process. It ensures your wishes are understood, your legacy is preserved, and your loved ones are cared for after your death. It’s also a great way to provide yourself with peace of mind: You’ll know you’ve done everything in your power to prepare your family for the inevitable.

Creating a will and keeping it updated are not difficult nor expensive tasks. Your signed, valid will can be as simple as just a few lines of text, or so complex it takes up several pages. There are free, DIY options to create a will, or you can go the traditional route and pay an estate attorney.

No matter how you choose to do it, creating a will is too important to leave for tomorrow.