The quintessential cornerstone of nearly any estate plan is the will. It is the first document that comes to mind when we talk about inheritance and bequeathment, and it is a versatile tool with the ability to distribute property and assets, name guardians for our minor dependents, and even make note of funerary wishes.
Dying intestate, or without any testament as to what you want to have done with your belongings, means that your assets must be distributed as per your state’s local intestacy laws, which leave very little room for interpretation. This means you have no control over who gets what – and the courts decide whom among your surviving relatives must take charge of keeping inventory of your estate, and distributing your assets accordingly.
A simple will can change that. Wills are little more than witnessed, signed, and officiated documents explaining what you want to have done with the things you own. Without a will, all your community property passes to your spouse along with either a third or half of your personal property, while the remainder is distributed among your next of kin, starting with your children.
With a will, you can clarify exactly who gets what, bequeath a family heirloom to your brother, leave your car to your daughter, and distribute the total remainder of each of your bank accounts among your friends and family members.
But wills come in many shapes and forms. Not all are made equal, and some are more valid than others. Should you even bother with a will to begin with, or any estate planning for that matter? Well, if you have any pets, any children, a spouse, a cohabiting partner, or any asset to your name, chances are that an estate plan may be of some value to you.
What is a Simple Will?
As the name implies, a simple will is a basic will with the bare necessities outlined and clarified. Simple wills use basic legal language to help you declare who gets what, while ensuring the will’s validity by including details about any other existing will documents, clarifying the will’s (current) finality by dating it, declaring previous wills as invalid, and naming a personal representative you trust.
Your personal representative, or your executor, will be in charge of carrying out your wishes. If your personal representative refuses the responsibility, you will need to another option. It is usually a good idea to name a secondary choice, in the very least.
If you have any surviving minor children, a simple will can also be used to explicitly name who should raise them (if your spouse or partner did not survive). If you are unmarried, a will can also be used to help support the idea that your cohabiting partner and stepparent of your children can adopt and raise them.
There are limits to what a will can do. You can ask a relative to take care of your dog by bequeathing them as a possession, but you cannot force them to do so. They can take the dog and send them to a shelter with no repercussions. Furthermore, you can make requests to your family, but they do not necessarily need to honor them. If you have certain funerary rites in mind, your family is not obliged to follow through on these.
What differentiates a simple will from a more complex will? The complexity of the estate, for the most part. Special circumstances – such as foreign assets, assets scattered across multiple states, or a spectacularly large fortune – may require more comprehensive wills, as well as numerous other estate planning documents.
Like any will, a simple will can be revoked, or even adjusted and amended. Will amendments, also called will codicils, are additional documents you can create to add onto a will or make simple adjustments and changes. Larger, more significant changes, such as the removal or addition of multiple beneficiaries, or changing the way you want entire pages of assets distributed, usually calls for the complete revocation of your old will, and the creation of a new one.
Holographic Wills, Nuncupative Wills, and Witnessed Wills
There are a few requirements for creating a simple will. These include:
- Specific legal language to indicate that the document in question is a last will and testament.
- The creator of the will (you) must be of legal age (18 years, or older), and of sound mind. To that end,
- The singing of the will must be witnessed by multiple witnesses who are impartial to the contents of the will, i.e., they cannot be beneficiaries within the will. This is to ensure that there are witnesses confirming that you at least signed the will in good mental health.
- A signed and witnessed will must be notarized.
It is not a very long list. However, there are still instances where people are nearing their final hour, and wish for their last will to be heard and carried out without the time to go through the entire process needed to create an official will.
Holographic wills are another potential option – these are handwritten wills and require the expertise of a handwriting analyst to determine authenticity and validity. Not all states accept handwritten wills. Nuncupative wills are even harder to recognize and are very rarely accepted – these are oral wills, existing only through the recounted testimony of someone who witnessed the decedent’s death and heard their last wishes.
Wills vs. Trusts
You’ve likely heard of wills and understand how they work. But have you heard of trusts? While the two are often compared, it is important to understand how and why they’re different – and why they are not mutually exclusive.
Whereas a simple will is a set of validated and legally recognized instructions left behind for your loved ones to distribute your remaining belongings (under the supervision of a special court), a trust is an entity created through a legal agreement between three parties – the grantor/creator of the trust, the managing trustee, and the trust’s beneficiaries.
Trusts can hold nearly any asset funded into it, and can manage that asset even while the grantor is still alive. This allows you to separate yourself from certain assets you own, for example, for tax management or asset protection purposes.
These assets can then be transferred into the ownership of your loved ones, as per your specific instructions, upon your death or incapacity. Unlike a will, trusts require continuous management even while you live. This makes them more complicated and more expensive than wills. But for certain assets and circumstances, they can be well worth it.
Having an estate plan of your own can mean the difference between seamlessly transitioning your belongings from death into the hands of those you love, and leaving behind a chaotic situation in the immediate aftermath of your passing. A simple will can often be all you really need.