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Making Your Own Will
This book enables you to write your own will, valid in every state except Louisiana. If you're temporarily residing outside the United States for work, study, travel or military service, you can also use Nolo's Will Book to make a will valid in the U.S.
Using this book, most people can safely prepare their own will without hiring a lawyer. In your will you can make legally binding provisions for who gets your propertyreal estate, heirlooms and whatever else you own. You can also specify who will care for your minor children, if the need arises, and leave property for the benefit of your children. And by following the book's detailed instructions on signing and witnessing, you can be sure your will is legal.
A. What You Can Do in Your Will
Most people know what a will does, at least in a general waythey understand that it's a device, or document, you create to make binding provisions for who receives your property after your death.
A will is the simplest estate planning device, and the easiest to prepare. If you're like many people, a will is all the estate planning you need or want. Most younger people (roughly, under age 50) want to be certain their desires regarding their property will be carried out if they die; they also know that statistically, it's highly unlikely that they'll die for years. So they decide to postpone the cost and hassles of more complex estate planning until their autumnal years. A will is all they need for now.
Similarly, the primary estate planning goal of many younger couples is to ensure to the best of their abilities that their minor children will be well cared for, and financially provided for, if both parents should die together. Obviously, a single parent has the same concerns. A will enables a parent, to handle these matters.
Finally, many people, no matter what their age or health, simply don't want the bother and cost of extensive estate planning. Fortunately, preparing a will achieves their basic goal of distributing their property as they see fit, with as little hassle now as possible. If you don't need or want comprehensive estate planning, or have been postponing or procrastinating considering it, be sure you at least have a will.
1. What Your Will Can Do
When you prepare a will using this book, you can accomplish all these goals:
* You can leave your property, including your home and any other real estate, to those you chooseyour spouse, partner, children (including minor children), grandchildren, other relatives, friends, organizations or charities.
* Provide for an alternate person or organization to inherit something if the first person you pick to receive it fails to survive you.
* Appoint your executor, the person who handles your property after you die and makes sure the terms of your will are carried out.
* Nominate a personal guardian to care for your child or children, should you die before they reach age 18 and the other parent is unable or unwilling to care for them.
* Choose someone to manage property you leave to a minor or young adult. You can select the management method you decide is best for your situation. Your choices are to set up an individual child's trust or a "family pot" trust (all property left to minor children in one pot), leave a gift using the Uniform Transfers to Minors Act or leave the property directly to your minor children, to be supervised by the property guardian you name in your will.
* Revoke all previous wills.
* Forgive debts owed to you.
* Handle what happens to your property if you and your spouse die simultaneously.
* Disinherit anyone you want to, except where state law restricts your power to disinherit your spouse.
2. When You May Want More Estate Planning
A will is an indispensable part of any estate plan, and it's all the estate planning many people need or want. Other people decide they need to do some additional planning.
Here are the most common estate planning issues that prompt people to go beyond just making a will:
* reducing probate costs and delays (probate is the court process your will must go through after your death)
* reducing federal estate taxes, which may affect estates worth $625,000 to $1,000,000, depending on the year of death
* protecting your assets, as far as possible, from being depleted if you or your spouse suffer a catastrophic illness.
You may also want to go beyond a will if you have a personal situation that requires specialized and sophisticated legal work. For example, if you have a child with a disability, you'll want to provide for that child while at the same time preserving his or her eligibility for government benefits. You'll probably need a special trust, prepared by an expert.
Another situation in which you may need a trust is if you're married and have children from a prior marriage. However, some people in second or subsequent marriages need no more than a will. If you just want to divide your property, leaving some to your spouse and some outright to children from former marriages, a will from this book works fine. For instance, a woman can safely use a will to leave her share of a co-owned house and an investment in a limited partnership to her husband, and leave other major items of her property, including jewelry and stocks, to her children from her first marriage.
If you want to leave property in a more complex manner, however, you'll need arrangements beyond what's possible with this book's will forms. For example, you may want to leave property for the use of your spouse during her or his life, with the property to go to your children after death of the spouse. Accomplishing this requires a trust, sometimes called a marital "property control trust," which is a type of what's called an "AB" trust. A property control trust must be drafted by a knowledgeable attorney; there are too many complexities and individual differences for a standardized, do-it-yourself form.
If you don't know now whether or not you want more than a basic will, relax. As you work through this book, you'll get a good idea of whether or not a will can satisfy all your estate planning concerns. Chapter 14, Estate Planning, discusses common estate planning concerns in more detail.
All these estate planning concerns, and many others, are discussed in great depth in Plan Your Estate, by Denis Clifford and Cora Jordan (Nolo Press).
3. Property You Can't Leave by Will
A will doesn't affect certain kinds of property that you've legally bound yourself to transfer by other means, including:
* Property held in joint tenancy, which will automatically belong to the surviving joint tenant(s) at your death. A will provision leaving joint tenancy property would have no effect unless all joint tenants died simultaneously.
* Property you've transferred to a living trust.
* Proceeds of a life insurance policy where you've already named a beneficiary for the policy.
* Money in a pension plan, individual retirement account (IRA), 401(k) plan or other retirement plan for which you've named a beneficiary.
* Money in a payable-on-death bank account, for which you have named a beneficiary to receive whatever is in the account when you die.
* Property specifically controlled by a contract. For example, if you are a partner in a small business, the partnership agreement (a contract) may limit your ability to dispose of your interest in the business by will. The surviving partners may have the right to buy a deceased partner's interest at a "fair market value." You can, of course, specify in your will who is to receive the money from this sale.
(For more on these kinds of property, see Chapter 14, Section C.)
4. Illegal or Unenforceable Will Provisions
There are also a few legal limitations on what you can do in a will. You cannot:
* Attempt to encourage or restrain certain types of conduct of your beneficiaries. For example, you cannot leave a gift contingent on the marriage, divorce or change of religion of a recipient. You can, however, make a gift contingent on other behaviorthat is, "to John, if and when he goes to college." Why this distinction? Because courts say that "public policy" prohibits attempts to coerce fundamental rights like the choice of spouse or religion. But it's allowable to try to control lesser matters, like going to school. However, you cannot use this book to impose controls over your beneficiaries or property, although you can leave property in a trust for children. Making contingent gifts usually opens a can of wormswho will enforce the will's conditions, and for how long?
* Leave money for an illegal purpose, such as encouraging minors to smoke tobacco.
* Leave property to felons convicted of certain crimes. The rules vary from state to state.
B. Dying Without a Will
As one incentive to writing your will, let's pause for a moment and consider what happens if you die without one. If you don't make a will, or use some other valid method to transfer your property after you die, your property will be distributed to your spouse and children under the "intestate succession" law of your state. If you have neither spouse nor children, your property will go to other close relatives according to law. If no relatives qualify under law to inherit your property, it will go to your state (this is called "escheating"one of my favorite legal words). Similarly, in the absence of a will, a state court judge determines who will care for your children and their property, and also who will supervise the distribution of all of your property.
Because you bought this book, I won't bother with sermons on how foolish it would be for you to die without a will. But obviously, the division of property according to state intestate succession laws is highly unlikely to coincide with your exact personal desires. If you want to distribute any of your property to friends or organizations, intestate succession laws won't do it. If you're living with a domestic partner to whom you aren't married, that person can't receive any of your property if you die intestate, absent a contract. And if you have minor children, you will have left the judge no written guide as to who you want to raise themsomething no parent wants. In sum, dying intestate is as unwise as it is unnecessary.
C. The Human Element
The act of making a will may seem minor indeed, in the face of the overwhelming emotional force and mystery of death. The larger questions and meanings are appropriately left for philosophers, clergy, poets and, ultimately, to you. For many, death is a painful subject to think about, to talk about and to plan for. The ancient Greeks believed the inevitability of death could best be faced by performing great deeds. Christian religions offer the promise of eternal life; preparing for death means preparing to "meet your maker." Other cultures prepare for death in a wide variety of ways.
However you choose to prepare spiritually for death, many practical matters must be dealt with. For example, your property will have to be given to someone. It's no denigration of death, or life, for you to be concerned with the wisest, most desirable distribution of your property. Writing a will is an act of concern, or love, to ensure that the people (and organizations) you care for receive the property you want them to have.
Discussing your wishes with close family members, if you choose to do so, can be worthwhile. Most couples discuss their wills with each other. You may want to discuss your will with other people, particularly close family members who are your beneficiaries. Of course, you don't have to discuss the contents of your will with anyone. Even your executor only needs to know that you wrote a will and where it's locatednot what's in it. Haven't we all seen some Hollywood potboiler where the will of the deceased is read to the shock or dismay of would-be inheritors and perhaps the executor as well?
I suggest that in real life it's often wise to go further. Before making final decisions about your will, candor is often sensible for several reasons, ranging from the pleasure of letting people know what they'll inherit to clearing up confusion to reducing tensions. Maybe you'll learn how much two children really love and want that heirloom artwork. Or perhaps you'll learn that nobody cares that much. Isn't it better to know the desires of your loved ones before you write your will, or at least let people know what you intend to do?
Most of this book is devoted to the mechanics of will preparation. But don't let the technical aspects of will making overshadow the personal oneswhich, after all, are why you're writing a will.
D. How to Get the Most From This Book
You may be tempted, especially if you think your situation is uncomplicated, to skip most of this book and go straight to the fill-in-the-blank wills. After all, filling in those blanks doesn't look too hard, does it?
I urge you to you slow down and take advantage of the information in the book first. The book's chapters are designed to be read sequentially. They start with some important background material about wills and pertinent state property laws, and then cover inventorying your property. Then you'll be ready to move to the core of will writing: choosing your beneficiaries (your inheritors), choosing your executor (the person who carries out the will's terms), and providing for any minor children you have, including nominating someone to raise them in the event you and their other parent can't.
This is a workbook. Don't be afraid to mark up this book. Many readers find that it helps them to write down facts, make notes and record decisions as they proceed through the book.
A number of worksheets are provided to aid you with this process. You may want to tear them out (they're perforated), or photocopy them and work on the copies. Of course, use of the worksheets isn't mandatorythis isn't school. It's up to you to decide how much you want to use them.
So take out a pencil, eraser and some scratch paper, and get ready.
After you've read through the material that applies to your personal situation, tackle the will forms. The book gives you two ways to prepare a will. You can:
* Choose a fill-in-the-blank form, if one fits your family situation, from Chapter 10; or
* Create a customized will clause by clause, choosing from an extensive variety of options from Chapter 11. Sometimes I also refer to this an assemble-the-clauses will.
Both the fill-in-the-blank will forms and the create-your-own-will clauses are on the computer disk in the back of this book. You can use a computer to prepare the final version of your will, or type it out on a typewriter.
Next, pay close attention to the discussion of the rules that control how you must make your will valid under state law (signing and witnessing), and read the suggestions on what to do with your will after it's been finalized.
Finally, there's information on estate planning and using lawyers.
Don't wing it. If you jump right to the forms without knowing what you're doing, you're flying blind. For instance, take the issue of naming someone to receive a beneficiary's property if be or she predeceases you. This is called naming an alternate beneficiary. Do you want to bother with this? What do you risk if you don't? Can you name more than one alternate beneficiary for the same gift? Clearly, it's better to know what your choices are than to decide by hunch or guess.
It's really not very demanding to go through this book and grasp the information you need. So take an houror threeto do it. Sure, skim or skip materials that clearly don't apply to you, but remember, your purpose here is not speed, but effectivenessyou want a will that is both legally valid and achieves your personal desires. That will take a little time (probably less than you expect) but will be well worth it.
E. Will You Need a Lawyer?
Most people can draft their own will without any aid except this book. The will-making process doesn't inherently necessitate a lawyer. After all, for most people, making a will involves absolutely no conflict with others, which is the most common reason for hiring an attorney. No state law requires that a will be prepared or approved by a lawyer. In reality, only occasionally does a will require the sort of complex legal maneuvering that can necessitate a lawyer's skills. This book alerts you when drafting your will may require a lawyer's assistance.
Wills have been a part of Anglo-American law for hundreds of years, in more or less the same basic form. For centuries, self-help was the rule in this country and lawyer assistance the exception. Even as late as the Civil War, it was unusual for a person to hire a lawyer to write a will. However, in more recent times, the legal profession has frightened the public into thinking you must have a lawyer prepare your will. This is nonsense.
The heart of making a will is deciding who you want to leave your property to. No lawyer can determine that for you. Similarly, a lawyer is obviously not the best person to decide who to name as guardian to raise your children if you can't. While working these matters through may be difficult, you can probably state your decisions in a sentence or two. And the plain truth is that turning those sentences into a formal will is usually not very complicated.
In any case, a will drafted by a lawyer is probably not as custom-tailored as you might imagine. Lawyers generally prepare wills by adapting previous clients' wills. And those wills probably originated from a standard attorney's form book containing the same types of clauses you'll find in this book (except that we've removed considerable amounts of unnecessary legal-sounding verbiage). Very likely, the lawyer has created a standardized form on computer. All that's left to be done is to type in your name, the names of the people you want your property to go to, and other necessary information, and then to print out the document. There's nothing wrong with this approachbut you can do it yourself just as well, using the forms in this book, and much more cheaply.
Some members of the legal establishment have tried to frighten the public with horror stories of disasters that befell some benighted person with a self-drafted will. A renowned lawyer once remarked that anyone who can take out his own appendix can write his own will. This analogy is false. If you can decide on which over-the-counter remedy to buy for a cold, or complete simple tax forms, preparing your own will should present no problems, unless yours is an unusual situation. (As I've said, throughout the book I flag potentially complex situations where you might need the help of an expert.) Drafting a valid will takes intelligence and common sense, but doesn't normally require sophisticated legal skills.
If you do decide at some stage that you want a lawyer's assistance, educating yourself will still be helpful. If you are fairly knowledgeable about wills, or, better yet, prepare a draft of what you want, you may substantially reduce the lawyer's fee. And you'll be better able to tell whether the lawyer is being straightforward or is trying to bamboozle you into an overly complicated and expensive approach.
One piece of advice: In a will, you're expressing your own intentions. No one else can know those intentions. Sometimes, when people think, or fear, that they need a lawyer, what they're really doing is longing for an authority figure (or believing one is required) to tell them what to do. By buying this book, you've demonstrated that you're not willing to turn such basic decisions as the distribution of your own property over to someone else. Good. Keep that firmly in mind when considering whether you actually need a lawyer's help.
F. A Look at a Basic Will
Seeing a will drafted from this book may take some of the mystery out of the documentand reassure you that you can safely write your own will. At this point, some phrases or terms may not be crystal clear to you, but rest assured that every one will be thoroughly explained before you actually begin drafting your will.
Let's take as our example Jane Martinez, a woman in her mid-30s. Jane is married to Michael Francois. They have no children. She has several good friends and a cherished older sister, Martha Dougherty.
Jane's major assets are the expensive tools and other business assets she uses in her solely owned woodworking company, her sports car and $65,000 in savings. She also values her extensive library, several pieces of jewelry and one Thomas Hart Benton etching she inherited from her aunt.
This sample will is complete except for the formula language defining the executor's powers, which is the same for all wills and is omitted here to save space.
Table of Contents
|1 Making Your Own Will||1/2|
|2 An Overview of Wills||2/2|
|3 Special Property Rules for Married People||3/2|
|4 Taking Inventory of Your Property||4/3|
|5 Your Beneficiaries||5/3|
|6 Choosing Your Executor||6/2|
|8 Debts and Taxes||8/2|
|9 Choosing the Right Will Form||9/2|
|10 Making a Fill-in-the-Blanks Will||10/2|
|11 Making a Customized Will||11/3|
|12 Formalities of Will Drafting||12/2|
|13 Changing or Revoking Your Will||13/2|
|14 Estate Planning||14/2|
|15 Lawyers and Doing Your Own Legal Research||15/2|
|Appendix Tear-Out Forms|