May Your Will Be Done

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Sep 2021

Writing a will is one of those things that you know you ought to do, but many of us try to avoid. A will is the way you authorize the transfer of your assets to your spouse, children or others after your death. If you don’t have a valid will, your home, bank accounts and other possessions will be dispersed at a court’s discretion in a probate proceeding — and the fact that you told your nephew he could inherit your classic car may make no difference to the judge.

What’s in a Will?

A will is basically a written statement detailing who should receive your property. In most states, it must be signed by a witness, while others require a notary. It must name an executor, the person who will oversee the legal process of transferring your assets. That can be your spouse, an adult child or a trusted friend, attorney or banker. Be aware that executors are often paid around 2% to 5% of the value of the estate for their work, even if they’re not professionals.

What a Will Can — and Can’t — Do

A will can transfer many types of property: real estate, intellectual property like patents and real property such as cars, furnishings, artwork and collectibles. It can also transfer shares in a partnership or corporation, though that may depend on the by-laws or partnership agreement.

However, understand that there are limits to what can be in a will, such as if you have property that’s held in joint tenancy with someone else, like a spouse — or financial assets such as retirement accounts, brokerage accounts or insurance policies for which you’ve signed a beneficiary form.

In addition, you can’t put overly onerous conditions on bequests, such as requiring someone to get married, divorced or change their religion. Some conditions, such as leaving money that someone is to receive if they go to college, for example, might be ok. And you can’t leave your money to your cat; animals can’t own property, but you can leave money to someone else to take care of your cat after you’re gone.

To Hire or Not to Hire

There’s no legal requirement that you hire an attorney to create your will. However, if you have complicated finances, family members or business partners who could fight over inheritance, or just a desire for peace of mind, you may want to hire a specialized estate planning attorney who is up to date on the latest regulations in your state and can help ensure your interests are represented faithfully.

You can also use a do-it-yourself will kit or an online service such as LegalZoom, Rocket Lawyer or Quicken Willmaker & Trust. If your financial life and your wishes are simple, one of those may suffice. However, be aware that any mistakes you make can be costly for your heirs to undo.

Don’t Hide It

You have a will. Now, where to keep it? If you use a bank safe deposit box, make sure two other people — your spouse and either a child or your attorney — have a key and access to the box. Otherwise, your heirs will have to get a court order to drill the lock. A secure, fireproof safe at home is another option. You can also give a copy to an attorney you trust and let your heirs know who that is. However, some jurisdictions may require an original signed document — not a copy.

Facing Hard Facts

Writing a will means you have to envision a future you’re not a part of. It can also mean making difficult decisions about how to treat children and other relatives. But it’s important not to bury your head in the sand about preparing a will. Postponing those decisions will not make them any easier, and finalizing your wishes can take one more nagging “to do” item off your list and safeguard your final wishes.

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