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What Is a Will?

Willing Staff Attorney

Key Takeaways

A last will and testament is a legal document that has a set of instructions for your loved ones to follow after you pass.

If you don't make a will, the laws of the state you live in at the time of your death essentially provide a will for you.

Not having a will can cause problems for your loved ones due to confusion regarding ownership of your estate.

Many people avoid making a will because they don’t know where to start or fear their own mortality. But without a will, your loved ones will be left in the dark about your final wishes and state law will decide who receives your property.

Don’t be afraid of making a will. You’ll understand why it’s important to have a will and be ready to make one right now instead of later once you learn:

  • What is a will;
  • What happens without a will;
  • What needs to be included in a will; and
  • How to create a will.

What is a will?

A last will and testament, or will for short, is a legal document that has a set of instructions for your loved ones to follow after your death. It allows you to decide who will receive your property (beneficiaries), who will take care of your minor children (guardian) and who will be in charge of carrying out your final wishes (executor or personal representative). In other words, a will puts you — not state law — in control of how your property is divided after you die.

What happens if you don’t make a will?

If you don’t make a will, the laws of the state you live in at the time of your death essentially provide a will for you. The laws governing the estate of a person who fails to make a will are called “intestacy laws,” and the estate of a person who fails to make a will is called an “intestate estate.”

Unfortunately, intestacy laws vary widely across the states. In fact, if you don’t have a will, the people who end up with your property after you die may not be the ones you’d have chosen had you taken the time to make a will.

What do you need to include in your will?

To make a valid will, you must be 18 years of age or older and of sound mind. In other words, you understand what you own and know who are the “natural objects of your bounty,” meaning the people who would be likely to inherit your estate, such as your spouse, children, grandchildren or other family members.

Your will should include:

  • A statement of intent: “I am of sound mind and intend that this be my last will and testament, revoking all prior wills and codicils;”
  • How to dispose of your remains;
  • How your final bills, expenses and taxes will be paid;
  • Who (beneficiaries) will get what and when they’ll get it. For example, your spouse or adult children will receive your property immediately, or your minor children or grandchildren will receive your property after reaching a specific age;
  • Who will be in charge of carrying out your final wishes (executor or personal representative);
  • Who will take care of your minor children, if any (guardian); and
  • What your executor or personal representative can do (powers).

How do you make a will?

To make a will, you’ll need to decide:

  • What should happen to your remains? You can specify cremation, burial or let your family decide.
  • Who will be your beneficiaries? While most states require your spouse to be included as a beneficiary among your children, grandchildren and other family members, you’re free to include or exclude whomever you choose. You can also name a charity, such as your church or a local shelter, as a beneficiary.
  • What will they get? Decide who will inherit your belongings — jewelry, collectibles, antiques, pets; and who will inherit your assets – bank accounts, stocks and bonds, real estate.
  • Who will be the guardian responsible for taking care of your minor children until they become adults?
  • Who will be the executor/personal representative in charge of settling your final bills, expenses and taxes and carrying out your wishes?

Once you make these decisions and organize your thoughts, your last will and testament should be typed up on a computer. You’ll then need to sign the document in front of two witnesses.

Final thoughts about making a will

While you may not be thrilled about making a will, it’s important to share your final instructions with your family. Otherwise, they’ll be left to guess about what you would have wanted and, despite your true wishes, state law will decide who gets what, when they’ll get it and who’ll be responsible for overseeing the process.

Don’t leave a mess for your loved ones to clean up. Instead, take the time to make a will so you’ll be in control and have peace of mind knowing your family will be taken care of after you’re gone.

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