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How (and Why) to Write a Will

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We all know having a will is important. So why do so many people still not have one?

We all know having a will is important. So why do so many people still not have one? Could it be because wills are pretty complex?

Indeed, there are many different types of wills, often filled with legal jargon that seems designed to confuse. But it’s vitally important to understand what should go into your will for the sake of your loved ones—and in particular, for your executor (the person you designate to carry out your final wishes).


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There are more than 100 steps in the executor process (at Executor.org, our goal is to help people navigate those steps). The process typically starts with finding, reading and attempting to follow what is spelled out in this critical document. After reading this article, we hope you’ll feel confident enough to walk into a law office and talk intelligently about what you are looking for in a will.   

Here we go:

Let’s start with the concept of a will itself. In a broad sense, a will is an instruction manual. It tells the relevant people what to do with your possessions after you die. But just as the instruction manual for Candy Land and Monopoly are alike because they direct you to roll dice, advance a token, follow instructions on the board, etc.; they are also very different when you get into the details based on differences in the games. Similarly, wills can look a bit different depending on the state where you reside; the general principles are still there, but the specifics can vary greatly. 

* Why is writing a will so complicated?

If a will is designed to just be a set of instructions, why does it have to get so complicated? Part of the complication stems from the fact that different people want different things from a will. The other part comes from generations of knowledge about how to prevent problems before they arise. When a person writes a will but then wants to rewrite it, for example, the new will is written to contain language revoking the old will. That revocation language is present because it can prevent the problem of a person having two different wills at death. It’s a lot of work trying to figure out which one is the real one, so it’s better not to have to deal with the problem in the first place.

* A will is a set of instructions. Sometimes, instructions need to change.

Some people get a will when they get married so their spouse can receive their possessions. But what if that couple subsequently has children? They may want to update or re-write the will so the children can receive something too. If a person wants to add on to a will, the process usually involves use of a codicil. A codicil adds additional information or further instructions after a will is written. Just as there is revocation language in a new will, there is also usually specific language that needs to be present in a codicil to prove its validity. 

* Probably the most common type of will is called a mutual will.

You generally see mutual wills prepared for married couples. In a typical mutual will, everything is exactly the same except the name of the primary beneficiary. The will of one spouse includes the name of the other, and vice versa. Also, it is most often the case in a mutual will that the surviving spouse gets everything in the estate. Only after both spouses die do you follow the rest of the instructions in the will to determine who inherits next. 

Interestingly enough, if a person prepares a will containing whatever instructions he or she desires, but it is not a mutual will, that is just called a will. There is no special name for it. So, in this case, a “will” is probably the second most common type of will. 


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* Most people (but not all) will enlist the help of a lawyer to prepare a will.

Even if they don’t go to a lawyer’s office, they may buy a form to fill in the blanks with what they want or fill out a form online that generates a will. You better believe lawyers had a hand in preparing those forms too! But there is a type of will that does not involve a lawyer at all. A holographic will is a will that is handwritten by the person wishing to make a will—no lawyer required. But be careful. While this may sound like the perfect solution for someone who does not want to deal with a lawyer, if you do not follow the specific rules in place governing holographic wills in your state of residence, dying with a holographic will can be the same as dying without a will at all. For example, despite the fact that we live in a technology-centered world, many states require that holographic wills still must be handwritten in their entirety. This means if you type a will then sign it at the bottom, it may not be considered to be a will. Some states take it even further and do not recognize holographic wills at all. 

* There are a few other will types, but they’re far less common.

A conditional will is one written for a specific event. It becomes invalid directly after the event is over. For example, a conditional will may be written by someone in anticipation of going skydiving (in this case, the “condition” of the conditional will is skydiving). If the person dies while on that skydiving excursion, the will is valid, but if the person dies years later of a heart attack, the conditional will has no effect. Similarly uncommon is a joint will. A joint will is a will written to be the will of multiple people instead of just one individual. 

If a person only talks about how he wants his possessions distributed after his death, that is likely not a will. It is extremely rare for an “oral will” to be recognized, but there are some states that make allowances for an oral will in very specific circumstances.  Generally the laws governing oral wills dictate exactly when such statements can be made and even how many people must be present to hear these statements. Suffice it to say oral wills almost never happen in real life. 

* It’s possible for a will to award possessions to a trust rather than a specific person.

Wills may contain instructions that state possessions be held in a trust instead of being given outright to specific people. Usually wills contain a combination of placing possessions into a trust and direct gifting. But occasionally a will is written to place everything into a trust that the maker of the will created before their death. This is called a pour over will. With a pour over will, the instructions for distribution of possessions are contained in the trust documentation, not in the will. 

Now you know that while there are many complicated types of wills out there, the type you will most likely need is relatively simple. The legal jargon it contains is there to protect your wishes and provide clear instructions to your survivors. So what’s next? Begin to think about who you would like to receive your possessions after you die. It can be family members, friends or even charitable causes, religious organizations or schools—or any combination thereof. Once you make those decisions, contact an attorney with confidence, knowing you understand the general types of wills and can converse intelligently about what you need.


Patrick O’Brien is the co-founder and CEO of Executor.org, a suite of free, comprehensive online tools that help executors manage their duties and responsibilities. The free tools include an interactive checklist for executors, a data vault to store important information, and invaluable tips on everything from the probate court process to managing estate assets.

 


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