All You Need To Know About Creating A Will
Who gets your kids? Who gets your stuff? What do you need to make it official? You've got questions, we've got this article.
Why You Need One
It's important to have a Will so that your family/friends/business associates don’t spend the next decade fighting in court, and possibly in person… with fists. The fights can get even uglier if you have young kids, or lots of money and property, or both.
Example of why picking a guardian is so important: If you don’t want your irresponsible brother raising your kids, and you don’t make it clear in your Will, and he’s the closest relative your kids have if you die, then the courts will most likely give him your kids. If you want your responsible cousin to be the guardian, and put it in your Will—then there’s nothing your brother can do about it.
Decisions You Have To Make
Who Gets Your Stuff?
You can leave your stuff to anyone you want. A beneficiary can be a family member or members, friends, pets (via a human guardian), strangers, organizations, or institutions. By identifying who gets what, you’ll relieve some of the stress your family will have to face when settling your estate. If not, your heirs will have to make these decisions.
We’re sure your family is incredible, but money can make people weird. Especially since they’re going through a tough time without you around. Isn’t it better for them to be able to blame any decisions they don't agree with on you rather than taking it out on each other? Family feuds are so 19th century. Just ask the Hatfields and McCoys… if any of them are still alive. [Dig Deeper: Inheritors and Beneficiaries]
The Only People Who Get Nothing Are…
The people who serve as witnesses to the signing of the Will. Legally, anyone who witnessed the signing of a Will can't be named as a beneficiary. So make sure your brother or best friend isn’t a witness, unless you don’t want to give them anything. Then the joke's on them!
The Person Responsible For Making Sure Everything You Want Gets Done
This is an “Executor” because they have to “execute” everything in your Will. Makes sense, right? The person you name as your executor is responsible for paying any debts or taxes on behalf of your estate and making sure that the people who are supposed to inherit your assets actually get them. [Dig Deeper: How To Choose An Executor and How To Be A Good Executor]
Who’s Taking Care of Your Kids and Dependents?
Choosing a guardian usually the toughest decision to make when creating a Will. Who’s going to raise your kids if you die? If you’re married it’s probably your spouse. If you’re divorced, it’s probably your ex-spouse. If you don’t have a spouse or your ex-spouse isn’t an option, then you’ve got some thinking to do. Most people have godparents, but that could just be an honorary title you gave someone to make them feel better. It doesn’t mean you want them actually raising your kids. Odds are you already know who you want to serve as guardian but you have to make it legal. [Dig Deeper: Choosing A Guardian For Minor Children and How To Choose A Guardian]
Who Handles the Money and Assets You Leave For Your Kids?
Enter the Guardian of the Estate, who’s tasked with managing your child’s financial well-being. There may be a significant amount of money involved, especially if you have life insurance, and it’s this person’s duty to always keep your kid’s best interest in mind when making financial decisions.
We already established that a court will name a guardian if you don’t. Well, that same guardian will most likely get all the money and assets as well. So if you don’t care enough about your kids to name a guardian, at least think of those sad, lonely piles of money getting into the wrong hands.
It ain’t easy being an estate guardian but being fiscally responsible is paramount. Apart from managing the assets, he or she also has to make an inventory of the assets for the court, file annual reports detailing the value, income, investments and expenses of the estate. [Dig Deeper: Choosing A Guardian Of The Estate]
Just Because You Trust Someone To Raise Your Kids, Doesn’t Mean You Trust Them with Money
You can choose different people to serve as a guardian of a person and an estate guardian. Why?
Example: Let’s say your sister is great with kids but horrible with money. And your brother is great with money but horrible with kids. See, now it’s all starting to make sense...
If you opt for different estate/person guardians for whatever reason, make sure they can collaborate effectively and work together on the child’s behalf. Whenever the person-guardian needs funds for the kid, he or she needs to hit up the estate-guardian for the money. On paper this makes sense, but you won’t be around to manage the personal dynamics if things go south. So, choose wisely and let them know beforehand so it’s not a shock. Plus, if you sense any tension then you can choose different people. [Dig Deeper: Appointing Different People as Guardian of the Person and Guardian of the Estate]
Do You Want to Use an Attorney or Do It Online?
Quick and Basic: There are a bunch of online legal services that can help you create a basic and official Will that covers all the bases (beneficiaries, guardians, and an executor), but it's always best to do it with an attorney if possible. [Dig Deeper: Online Legal Services]
More Involved: If you have complex financial arrangements, such as real estate, overseas assets, elaborate investments, or trusts, then you’re going to need some help. This means working with an attorney or an online service that offers advice from real lawyers. The best way to find an attorney isn’t much different than finding a good doctor, electrician or dog walker. Get recommendations from friends, family, or other attorneys. Once you have some options, meet with them and make sure you get along, approve of their working style and skills, and, of course, don’t forget the price tag.
If You Die With A Will
Think of your will as an eager flower that’s not allowed to bloom until a probate court gives it permission. But once it does it’s a thing of beauty. So beautiful we crafted the next section into a three act play:
Act 1: Your executor presents the will to probate court.
Act 2: The probate proceedings can take anywhere from 3 months to 3 years, depending on your state’s laws and the complexity of your estate. In short, get comfy. You can’t distribute property, sell assets or pay off debts until the court grants approval.
Act 3: The court validates the Will. Victory! Now the executor can get to work and start handing out assets to the beneficiaries. [Dig Deeper: Understanding Probate]
If You Die Without A Will
The short of it: The court gives your closest surviving relatives everything, including assets and custody over minor children. (Also known as “succession laws.”) Your estate will still have to go through the probate process, and “intestacy laws” kick in to determine who gets what. [Dig Deeper: Understanding Inheritance Rights]
Your Will, Your Say: What You Can Put In It
You can create a Will as basic or elaborate as you want. If you want to keep it simple you can split all your money, assets, property, investments, dragons (just making sure you’re still awake) evenly between all your beneficiaries. If you want to make sure some people get more, and others get less than more, this is how you make sure your property is given to the people you want the way you want it.
Keep Your Family In Check
When money’s involved, things can get quite heated, even among the happiest of families. We’re sure your family is wonderful, but if you’re concerned about possible disagreements that can drag on for years, a Will helps avoid all the drama. You make the decisions so if they’re angry they can take it up with you and keep it out of court. And you’re not going to be too receptive to their complaints since you’ll be relaxing on a cloud wearing a stylish halo.
Property You Can Include in a Will
- Actual property, such as real estate, land, and buildings. Oh, and don't forget to include all the castles you own like the one pictured above. It'd be a shame if you left that out.
- Cash, including money in checking accounts, savings accounts, and money market accounts, etc.
- "Intangible personal property" such as stocks, bonds, and other forms of business ownership, as well as intellectual property, royalties, patents, and copyrights, etc...
- "Unproductive property" such as cars, artwork, jewelry, and furniture, etc...
What Happens to All the Leftovers?
Who’s got time to itemize every single possession in your life? Enter the “residuary estate,” which is all the extra stuff you don’t think is worth listing out separately. (Example: Stereo system, end table, power saw, shoe collection, photo albums, lamp shaped like a tiger, etc…) For these miscellaneous items you designate a “residuary beneficiary” who takes charge over all the remaining assets you don’t leave to named specific beneficiaries.
You may want to leave instructions so this person doesn’t feel the need to save everything as an eternal shrine to you, but can dole it out to friends and family as they see fit and donate the rest to charity or the local dump. Before you leave all your possessions to a residuary beneficiary, make sure you take a basic inventory of your assets to make sure you’re not including a few gems you want a specific person to have in the leftover pile.
A low-fi solution: Put Post-It Notes or gift tags on the underside of the items with the person’s name. This makes cleaning out your residence after you're gone a sort of scavenger hunter/second Christmas for your family.
What If You’ve Got a Lot of Leftovers? “Pour” Them Into a Trust…
A Pour-Over Will funnels any assets in your name into an already-created trust when you die. This is like having a holding room for any assets you may have forgotten about or intentionally left out of a trust that you would like to move into a trust after death. Hence the assets are “poured” into a trust.
Unlike the “residuary estate” mentioned above, once these assets are poured into the trust, those assets will be subject to the terms and stipulations of the trust. The reason people create this is to help heirs avoid probate if it’s under $100,000, or at least make the probate process go faster. The laws vary from state-to-state so this is one of those things you want to speak with an estate attorney about. [Dig Deeper: Writing A Pour-Over Will]
If You’ve Got a Lot To Give, It Can Get a Little Complicated
If you have significant property or assets, or particularly elaborate investments or financial arrangements, get help from an attorney to determine the best way to distribute said assets.
The attorney can help identify tax-efficient ways make sure your beneficiaries are taken care of, which may include establishing a post-death trust (fancy name: “testamentary trust”) or using other financial and legal wizardry he or she learned in law school.
On the flip side, if you don’t have significant or complex assets that require legal counsel, simply decide who will receive your assets, how they’ll be distributed and you’re done. [Dig Deeper: Property You Can Include In A Will]
Property You Can't Include in a Will
The short of it: If you don’t own something outright you can’t give it to someone when you die. What are those things? Glad you asked!
- Any property you own equally with someone else (fancy name: “joint tenancy”). Example: You can’t give away a house you own with your spouse, since the property automatically transfers to the surviving owner.
- Any trusts, retirement plans, or insurance policies that clearly state a beneficiary.
- Stocks or bonds that are set to transfer to another party upon death, which is just like the bullet point above.
Digital Property Still Isn’t Yours to Give
While you may consider digital assets as your personal property—i.e. Facebook, Twitter, Instagram, Gmail, etc…—-the law doesn’t agree with you. Most online media companies (including social media, email and communication, photo and image sharing, etc...) are legally forbidden from disclosing content or granting account access to a third party without the consent of the owner. If the owner of the content or account dies, the law generally agrees the family of the person who owned the accounts is not allowed to access those accounts. [Dig Deeper: Property You Can’t Include In A Will]
Solutions For The Digital Asset Dilemma
Since laws and legislation have moved painfully slow regarding digital property, you have to get a little creative. Many people include login and password information in Wills in an attempt to transfer digital accounts to heirs; this doesn’t always work, since many companies claim the transfer of access violates the company's terms of service. (This is buried in that endless scroll of rules and conditions no one ever reads but you’re forced to accept to access their service.)
While it may be angering to know that a social media company can hold your account hostage beyond death, you probably don’t want to put this information in your Will for a different reason. A Will is a public document, and sharing login and password information here isn’t a secure. The Internet can be a mean place and who’s to stop some bored digital hooligan, or identity thief, from combing through Wills and accessing these accounts in hopes of causing all sorts of trouble.
This doesn’t mean you should give up and accept defeat. There are ways. Check out our How to Create a Digital Estate Plan to get the low-down. Plus, different states have different approaches. Example: Indiana, Idaho, and Oklahoma allow executors access to email accounts, social networking accounts, and blogging accounts. [Dig Deeper: State-by-State Digital Estate Planning Laws]
Keep Your Eyes on the Prize
It’s a good idea to periodically review beneficiaries to make sure the person or people named are still the ones you want to get the money or property. Things change over the course of your life—marriage, kids, divorce, cash windfalls, etc…—so it’s a good idea to keep everything current. Even if you’ve already named a beneficiary for certain assets—trusts, retirement plan, insurance policy, or stocks or bonds that are set to transfer upon death—it’s not necessarily set in stone. You’re allowed to change your mind and leave these things to somebody different.
Once You Get A Will, Where Should You Keep It?
One of the primary reasons we created this entire world of Everplans is to make the logistics surrounding death less of a confusing nightmare. Your Will should be digitally stored in your Everplan and physically stored along with other important estate planning documents in a secure, easy-to-access location. You should share this info with someone you trust—we call that person a Deputy—so it can be easily found when they need it.
Places To Store It
In your home in a personal safe, a locked filing cabinet, or any place you feel comfortable. If you store it in a location that requires a combination, password, or key for entry, you have to share that information as well or else it won’t be of much assistance when it’s needed.
Storing Your Will with an Attorney
Many estate attorneys and personal attorneys will be able to store your will in a secure location in his or her office. If you choose to store your will with your attorney, be sure to tell your family so they’re not tearing up the house looking for it.
In Your Everplan, Of Course
Not to toot our own horn, but we're pretty good at this. After you create an Everplan you should upload a copy of your Will and share it with your Deputy or Deputies. You choose what you want to share, it could be everything, it could be specific things, it could be nothing. You also choose what they see while you’re alive and what they’ll have access to when you’re gone. You can add and delete Deputies as frequently as you choose. [Click here for more info about us.]
Don’t Store Your Will in a Safe Deposit Box
Again, do not store your Will in a safe deposit box. Unless the box is jointly managed — and your survivors are authorized to access the safe deposit box — the bank will likely require a court order to access the box, and that could take a long time.
Informing People Where Your Will is Stored
Wherever you store it, make sure that important people you trust — your spouse, your adult children, your attorney, etc. — know where your Will is located so that they can easily access it if/when they need it. [Dig Deeper: Where To Store A Will]
Enough Legal Talk, Let’s Get Personal
You’ve been inundated with a lot of information and have made a lot of hard decisions. This is the part where you get to kick back and be yourself without any laws, statutes or other complicated aspects getting in the way.
It’s called an “ethical will,” which is a terribly cold name for something with so much heart. At Everplans we call it “Letter To Your Family,” where you get the chance to let your family, friends and anyone else close to you in this world know who you are and how you feel about them.
The thought of this letter gives us happy chills and misty eyes, because this is the culmination of all your hard work. Not just in getting a plan together, but in life and what you pass on to future generations. We’re fully aware people share so much through social media, but there’s something special about sharing personal thoughts directly to the people you love written directly from your heart. [Dig Deeper: Ethical Will Worksheet]
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