The first question you need to ask yourself is if the last will and testament the only thing you need. The reason why most people don’t ask themselves this question is because they are not aware that there is anything else. In most cases, if you think you need a will, you probably need an entire estate plan with powers of attorney and a healthcare directive. But let’s start with the most familiar one – a last will and testament. Now the question is what to include in a will and how to make it legal and binding.
What Is a Will?
Technically speaking, a Will is a legal document that allows you to put your wishes in writing regarding everything that happens after your death. A Will allows you to name an executor – the person that’s going to make sure that your wishes are honored. You can also name your pets and children’s guardians, how your assets will get distributed, and to whom.
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Do You Really Need a Last Will and Testament?
Although a Will is not legally required, without a will, state laws (called laws of intestacy) will determine who your assets go to. That distribution may not be exactly how you want things to go down, so it’s best to put your wishes in writing.
One of the greatest benefits of having a Will is that it allows you to choose the personal representative (known at the Executor in Connecticut) of your estate, the person who will be responsible for carrying out the wishes you’ve so carefully planned out. Without a will, anyone can petition to become your executor and the court will have to choose.
It’s important to know that the will alone does not give the executor the right to start giving out your stuff. Before the terms of a will can be accepted, the will must be proven in a probate court. The executor will have to petition the court to become the executor, and since that’s what’s in the Will – the request will most likely be accepted. Once the will is proven valid by the court, the executor can start paying off any debts owed by the estate first and then distribute the assets according to the will.
Step-by-Step Guide – How To Prepare For a Last Will and Testament
Before taking the big step of putting it in legal writing, make personal notes! write out a game plan, take little steps, and mark things off your list one by one – that is the best way to approach an important project without getting overwhelmed.
Step 1: List Your Assets
Before deciding what goes to who, you need to figure out what assets you actually have. Make a list! Start with the big stuff, like houses, cars, bank accounts, maybe a boat or two. Then go down to the little things, like your great aunt Mary’s bureau and your favorite spatula, everyone’s got a favorite spatula! You can list whatever you want, it is your will after all. Just remember not to write in assets that you own jointly with someone else. You can’t give away something that’s not fully yours.
Step 2: List Your Debts
Don’t worry, you’re not leaving your debts to anyone in particular. But leaving a complete list of all your debts will be extremely helpful to the executor of your estate. Your debts can include things like a mortgage, car lease, credit card debt, loans, and outstanding bills.
Not only will this list be helpful after your death, but it can also give you the ability to see the big picture and plan accordingly for things like funeral expenses, probate costs, and taxes.
Step 3: List Possible Executors
An executor is probably the most important person you will name in your last will and testament, so you have to be really careful about who you pick. No pressure. You’ll want to choose someone you trust, someone who’s responsible, and someone who is up to the task. Being an executor of an estate is a big responsibility, so It’s a good idea to ask the person you’ve named if they feel comfortable with it.
Making a list of the people closest to you will make it easier to narrow down your options to the main executor and a backup executor, in case your first choice is unable to go through with it. You never know what their life will be like when you kick the bucket. Close friends and family members are often the people we trust most as well as the people we’d like to inherit our life’s assets when we’re gone.
Step 4: List Possible Guardians
Next to the executor of your estate, choosing who will take care of your minor children if anything should happen, is just as important. If for any reason the other parent is unable to care for them or if both parents die at the same time, this is who will take the kids.
It’s a good idea to write in a second or even a third guardian option because you never want to leave the care of your children to chance. This is where making a list of all possible options will help you choose. Without a Will, the same laws of intestacy that distribute assets will also decide who will care for your kids. Your child will go to your spouse or your closest relative, such as a sibling or parent. For some of us, this is not the outcome we want, so choosing a guardian and writing it out legally makes sure your wishes are respected.
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Now To The Juicy Part – What To Include In a Will?
1. Executor
Now that you’ve narrowed down the list of trustworthy and responsible people, write down your first and second choice for the mastermind of your estate.
2. Guardian
If you’re a parent, this is probably the biggest reason you’ll want to create a last will and testament. It’s the best way you can make sure your children are cared for by the right people. Write down your first, second, and even third choice.
2. Asset Distribution
Make sure you describe which heir gets which property, then describe that property so the courts and your executor understand. Meaning, if you’re passing down a car to a grandchild, make sure you write down the make and model of the car, and, of course, which grandchild gets to park it in their driveway. Also, write down specific bank account numbers and the percentage that each beneficiary will get. The more detailed, the better, that way there is no doubt about what you want.
What happens if you leave behind debt?
As mentioned above, your last will and testament is not for leaving your debt to your not-so-favorite second cousin. Your debt also doesn’t exactly die with you, it dies when your estate runs out of money.
Will Your Executor Get Stuck Paying Your Debt?
No. The executor is not responsible for any debt you leave behind, in the sense that nothing will come out of their pockets. They don’t inherit your debt. However, your executor is responsible for paying these debts using your estate’s money. A court may even order your assets liquidated (such as the selling of assets to pay off existing loans). But if the money runs out, they will not be on the hook to pay anything.
Will Your Beneficiaries Get Stuck Paying Your Debt?
Estate law in the U.S. doesn’t require your beneficiaries or heirs to pay down your outstanding debt. Unless your executor is also your spouse, then that’s another story. But your friends and families won’t be reaching into their own pockets to pay anything you owed personally. If your estate doesn’t have enough assets to cover the debts you’ve incurred, it’s declared “insolvent.”
Can You Protect Your Assets From Creditors?
A Trust can help preserve especially important (or sentimental) property from creditors, so it would be smart to discuss your case with an estate planning attorney. There are different trusts that you can create depending on your personal situation. Special needs trust, a trust fund for your children, a revocable or irrevocable trust. It all depends on your assets, how you want to protect them and for what reason.
How To Keep Your Last Will and Testament Safe?
Having a will or a comprehensive estate plan won’t do you much good if no one can find it. Making and distributing copies of your estate planning documents are an incredibly important part of making sure your wishes are both known and followed. Here’s what you should know:
Where should you keep your Will?
When it comes to your legal documents, it’s important to stay organized. Generally, keeping your Will at home in a filing cabinet or a fire-proof safe is a good plan of action. if you’re married, it’s important that each spouse knows the location of both Wills (they can definitely be in the same place) and if you’re single, it’s smart to give a copy to a family member, your executor, or your estate planning attorney and also let them know where the original is.
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How do you make copies of your Will?
When we put your estate planning binder together, we always include the originals and a copy. You can always request to have more than one copy of your documents during your consultation ahead of time. It’s important to note that as an executor, you need the original Will of the deceased in order to open the Probate and get appointed as Executor.
Who should get the copies?
In addition to handing a copy of your estate plan to your named executor, you should also consider giving copies of certain documents to a few qualified professionals. Including
- Your Physician: Make sure your primary care doctor has a copy of your Advance Healthcare Directive. Talk with them about your medical wishes, and the procedures you’d like to avoid.
- Your Attorney: Your attorney should have a copy of all of your estate planning documents. They will be able to take the lead, along with your named agents and executor, in making sure your wishes are respected.
How Often Should You Update Your Will?
- After a big life event – Monumental events like marriage, divorce, the birth of a child, the death of a family member or close friend, are the sort of events that should trigger another look at your Last Will and Testament. Maybe take some people out and put some people in.
- Periodically – Look through your Will once in a while, you may have accumulated some important assets since you’ve put it together. Maybe you bought a house or a car or started your own business. On the other hand, you may have sold something that you were going to leave someone in the Will. Rereading your Documents every 3 years or so will help keep your documents current.
How to Update Your Will?
Changing your Will depends mostly on what documents you need to update. Generally, you can add a Codicil to a Will, which replaces old paragraphs in your Will with new ones. This is great when you’re adding a grandchild to your beneficiaries or removing a certain asset.
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When you’re thinking about big changes that will most likely change more than just a snippet of your current Will, you might want to give serious consideration to creating a new Will. While it sounds like a lot of work to start from scratch, remember that you’ve already created a Will, and being familiar with the process will make the second time go that much quicker and easier.
More importantly, the big life changes that make you consider a new Will, must be updated in your legal documents. Rather than going through each one and possibly forgetting or missing something, starting over gives you the peace of mind that nothing falls through the cracks.
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Disclaimer: The information provided in this article does not, and is not intended to, constitute legal advice and is for general informational purposes only.
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Marketing & Technology Director at RWC, LLC, Attorneys & Counselors at Law
Ukraine born and Israel / Miami, FL raised. University of Miami graduate in the Marketing field.
Mom to a girl, a boy, and a Siberian Husky.
