Creating a Will: The Breakdown - Werner Law Firm
Creating a Will: The Breakdown - Werner Law Firm

Creating a Will: The Breakdown

A person’s last will and testament is a very powerful document, if designed and executed properly. A will acts as a blueprint for the distribution of everything you own after you die, and can be used to assign more than just monetary value, giving you one last opportunity to address the family in a meaningful way, as well as proving a legal avenue to assign a guardian to your dependents and underage children. Despite that, only about a third of all Americans have a will, or any form of estate plan.

While not everyone needs a will, and many feel they are too young to consider one, wills are not exclusive to the old and wealthy. Estate planning is a topic that becomes most relevant whenever a young couple decides to begin a family, especially to ensure that their child receives proper care should the worst happen.

But if constructed poorly, cheaply, or improperly, a will can easily come back to haunt your family from beyond your grave. There is such a thing as a right way and a wrong way to go about creating a will, so be sure you are doing your due diligence.

Why a Will Is Needed

The simple reason a will is needed is because without a will, a person’s belongings are automatically distributed by the state according to its intestate laws. In California, intestate succession generally means that the surviving spouse gets half of everything not considered community property if there is one child, and a third if there are more (while the children get two thirds, divided between them).

If there are no kids in the picture, the spouse gets everything (and vice versa). If there is no spouse, and no kids, then the next of kin gets an equal share of the estate (siblings, parents, grandparents, and so on).

While this may be a hassle-free option for those who plan to give everything to their spouse and children anyway, it leaves one with no control over who gets what, and why. While a will does take some time to setup, it is well worth the cost and hassle, and can help you exercise a tremendous amount of control over how your estate is distributed. Here is everything you need to know at a glance:

The First Step to Creating a Will

A will begins with the most important decision – who gets what? The process of writing a will is a bit too complex to properly enumerate here, but before the drafting process begins, it’s important to sit down and think about how you would split your current assets and properties between your loved ones.

In most cases, it’s a smart decision to talk about these choices with your loved ones before you set them in stone and pass away. This way, you avoid many potential disputes that might occur should you pass away without clearly announcing your intentions regarding inheritance and the estate.

Choosing an Executor

Knowing who gets what is important, but the thing about a will is that without someone to enforce it, it ends up simply being a piece of paper. When you pass away, your loved ones will bring your will and death certificate to the courts to begin the probate process, wherein the courts proceed to choose someone to carry out the contents of said will.

However, you have a say in who that someone might be. If you choose no one, the courts decide (often picking a spouse or adult child). Should no one agree to executing the will, a third party may be hired, with the fiduciary responsibility to properly carry out the will’s needs.

An executor may also work with a third party (like a bank or probate law firm) to execute the will. It’s important to choose someone you trust to oversee the process, but competence matters too. Executing a will can be very complicated, and any mistake can have long-lasting repercussions.

Do You Have Kids?

Wills present an opportunity for parents of minor children to assign guardians for their children should they pass away before their children turn 18. Otherwise, the courts will decide who raises your kids, which might not always be in your best interest.

Avoid Vagueness

It is important to be clear about who gets what. If you decide to assign multiple beneficiaries to a single asset, be clear about who gets how much of a share in the asset. Consider how the value of what you own might change (for better or for worse) over time. It’s worth working with a legal professional to go over your ideas of how to split your estate in order to ensure that your wishes are conveyed clearly.

Hire a Lawyer

A will might seem simple enough, especially if you’ve taken the time to browse any of the countless free templates available online. But these are poorly constructed and bare-bones, or worse yet, structured specifically for some states but not for others.

Being clear in your will is important to avoid misunderstandings and clerical errors, which can often cost your family thousands in legal fees later down the road. Rather than risking it, it’s best to stay away from cheap templates and consult an experienced legal professional instead. This will ultimately save you money, and it will definitely save you stress and time.

Get Witnesses

A will must be signed to be valid, but it requires more than one signature. Your signature is obviously critical, but it’s important that at least a few other people involved in the will (beneficiaries and your chosen executor) sign the will as witnesses. This will grant the will further legitimacy and make it easier for the courts to determine that it is legitimate.

There are other ways to control and distribute an estate, but a will is always necessary. Even when most of your assets are tucked away into trusts and specific beneficiary designations, pour-over wills are an oft-forgotten safety measure to ensure that anything you happen to come into possession of between your last estate plan check and your death automatically transfers over into a trust, rather than passing through probate.

But for many families, a well-crafted last will and testament is simply a worthy investment for a much less painful probate process, and the knowledge that what you own will go to the right people, the right way.

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