This article is intended to provide general info and should not be solely relied on in lieu of seeking specific advice from a qualified attorney based on your specific needs.
Estate planning is a complex, emotionally charged topic that is also a complicated legal process. But at some point in your life, you will need some kind of estate planning; otherwise, you will die intestate, and your heirs will have to go through a complex probate process that may distribute your assets in a way you would never have chosen. If you have minor children, having a comprehensive estate plan is even more important for their safety and protection.
Of all the estate planning documents, the one that most people are familiar with is the last will and testament. For many people, this legal document is the only one they really know about. But a will is not the same thing as estate planning, and in this guide, we’re going to go over what a will is, how to write one, and what it can do for you.
What Is A Will?
In the simplest terms, a will is the legal document that outlines how somebody’s assets and property should be distributed after death. Your will is where you:
- Identify the beneficiaries who will inherit your personal property: This includes real estate, personal possessions, simple bank accounts, and other assets that you are the sole owner of
- Appoint an executor to manage the asset distribution process
- Name a guardian for minor children
- Provide instructions for funeral arrangements
While you can make plans for your belongings at any time, wills must meet three conditions to be legally valid:
1. The will must be signed by you, the person making it.
2. The will must be witnessed by two or more witnesses (frequently your estate planning attorney and somebody else from their office).
3. The will must conform to state-specific laws.
You can change and revoke your will at any time, but the signatures must remain updated so that probate does not revert to an earlier version of your will.
What Is A Testament?
Eagle-eyed readers may notice that the document referred to as a “will” is actually fully entitled “last will and testament.” This doesn’t mean that you have two documents, a will and a testament. Rather, in today’s legal terms, the two are synonyms. Originally, the will referred to the dispersal of real estate and the testament referred to the dispersal of personal property; today, we combine them for the will and testament, or just the “will” as most people know it.
Is A Will The Same As Estate Planning?
Not exactly! A will is part of estate planning, but it isn’t the only legal document that is part of the process. It is often the first document an estate planning lawyer will work with you to create. Here is how a will compares to the rest of estate planning.
Estate Planning Vs. Will
| Estate Planning | Will | |
| Overview | Comprehensive plan for your assets, end of life care, and overall estate | Document solely concerned with your assets that do not need a designated beneficiary, such as real estate, possessions, and minor children |
| Number of documents | Several documents | One document |
| Scope | Encompasses your entire estate including accounts with designated beneficiaries, e.g. life insurance, retirement accounts; also includes designated durable powers of attorney | Specifically relates to assets without beneficiary designations, e.g. possessions, simple bank accounts |
| Flexibility | Greater scope means greater flexibility for how asset distribution is determined | Relatively inflexible, but you can change it at any time; the document itself is flexible and versatile, but what it controls is less so |
| Privacy | Can provide greater privacy by using trusts and other structures to transfer assets without going through probate court | Becomes a public document as part of probate |
| Cost | Overall more expensive because it entails much more | Can be free to file |
What Are The Parts Of A Will?
Every will has six primary parts; if you are a parent with minor children, there is a seventh part.
1. Introduction
Every will starts out with a statement that identifies the document as your last will and testament. It should include your name, address, and other important identifying information. You can also mention the name of your attorney here, although it’s likely that your attorney will be one of the witnesses in part 7.
2. Executor
The next part of your will should name your executor. This person will be responsible for carrying out your wishes after you die. You should tell this person that you wish for them to be your executor while you are still of sound mind and body, so that it doesn’t come as a surprise– and so they have the chance to say no if they don’t feel that they can handle the responsibility. Your executor can be a family member, but some people are more comfortable asking their attorney to perform this role. You can also list alternatives if the first person you designate is unwilling or unable to serve as your executor.
3. Bequests
This is the most familiar part of the will. The bequests are specific gifts of property that you wish to give to specific individuals or organizations. This part of the will should list the specific bequests and the people or organizations that will receive them. One example of a bequest is donating money to charity or to a younger relative’s educational fund.
4. Residuary Estate
It is unlikely that you will have thought of everything in your bequests, and this portion of the will is the catch-all section where you identify what happens to the rest of your estate. This part of the will specifies who will receive the remaining assets and how they will be distributed.
5. Guardianship
If you have minor children, you should use your will to nominate a guardian to care for them if you die before they reach adulthood. This part of the will should name the person you have chosen as the guardian. You need to talk to this person beforehand; if you use your will to surprise somebody with the caretaking of your minor children, it will not go well.
6. Funeral and Burial Wishes
Some people use their will to specify their funeral and burial wishes. This part of the will should describe the type of funeral or memorial service you want and how you want your remains to be handled. This can be as simple or complex as you like. However, if your plan is body or organ donation, you should discuss that with your estate planning attorney before your death so that your wishes are carried out before your loved ones choose to embalm or cremate your remains.
7. Signatures and Witnesses
To be legally valid, a will must be signed by you and witnessed by at least two people who are not beneficiaries of the will. If you have an executor who is not a beneficiary, such as your lawyer, they are allowed to be a signatory. This part of the will should include your signature, the signatures of the witnesses, and the date the will was signed. You may also wish to get your will notarized, or your state may require it.
How Do I Make A Will?
At its most basic, writing a will involves listing your assets and who you want to receive them. You also need to designate caretakers for any minor children.
One very easy way to make a will is to follow the steps at FreeWill.com, a nonprofit dedicated to helping people take the necessary steps toward estate planning.
What Else Do I Need For Estate Planning?
In addition to your last will and testament, there are several other important documents that you will need as part of a comprehensive estate plan.
- Durable Power of Attorney: This document, also known as financial power of attorney, gives somebody access to your financial accounts and places them in position to make financial decisions for you if you are incapacitated.
- Medical Power of Attorney: This document, also known as healthcare power of attorney, names somebody who can make medical care decisions for you, such as decisions related to life support and health care.
- Beneficiary Designations: This document lists the beneficiaries of certain accounts, like retirement accounts and life insurance plans. You will likely build these up over time as you accumulate these accounts.
You may also want to put a revocable trust in place. A revocable trust places the ownership of your assets in a trust, which is the technical owner of those assets. You maintain control over all of your assets during your life, but upon your death, they are distributed from the trust, not from an individual. The main benefit of this is that when assets are distributed from a trust, they avoid probate court, meaning that your heirs can receive them faster and more easily.
While you technically can create a will and some estate planning documents on your own, it is much easier to engage the services of an estate planning attorney. They can guide you through the process and help you make things easier for your loved ones, including giving you guidance for reducing estate taxes and taxes on assets.
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