A will is a legal document that contains instructions for how a person (called the testator) wants their property and assets to be distributed after their death.
Every adult should have an estate plan that includes a legal will. If a person dies without having prepared one, they are considered “intestate,” which means that the intestacy laws in the state where they died will dictate how their real and personal property are distributed and to whom.
Although you may not yet be concerned about estate planning for yourself, as a caregiver, it is important to confirm the existence of your care recipient’s will and its location. The exact details of your loved one’s estate plan are not necessarily important but knowing where to find this document and the name of the lawyer who drafted it can make handling their passing and administering their estate much easier for you and other family members.
How a Will Works
Once a person dies, all their assets are collectively referred to as their “estate.” A last will and testament is a set of legal instructions for how a testator wishes their estate to be distributed to beneficiaries, such as family and close friends. A will should also name an executor or personal representative. This person is responsible for administering the estate under supervision of the probate court. In other words, the executor makes sure that the will is carried out as written and that the assets are distributed as directed.
While the specific requirements for determining whether a will is valid vary from state to state, a legal will typically must be
- in writing—either handwritten or typed and printed
- signed and dated by the testator
- witnessed by at least two disinterested people (individuals who will not personally benefit from the will) at the time of signing
- signed by these witnesses
- notarized (This is not a requirement in all states, but having the signing of a will notarized greatly increases the likelihood that the court will accept it as valid.)
Things to Include in a Will
Most people hire an attorney who specializes in estate planning or elder law to draft their will, especially if their estates are large or complex. However, those with smaller, uncomplicated estates may elect to draft their own basic wills with the help of legal self-help books, software programs, or online forms and templates. Just be aware that the laws pertaining to wills and the probate process can be very complex and a consultation with a lawyer is highly recommended for avoiding mistakes that can make the probate process unnecessarily long and even costly for surviving family members.
The following components are the most fundamental aspects of a will. A reputable attorney will be able to make more specific recommendations on titling property and naming beneficiaries that best suit a person’s unique situation.
Because a will is legally binding, a testator must declare their ability and willingness to make this document and their intention to enforce it over all other previous wills. To do this, the testator must provide their full name and current residential address along with a declaration that
- they are of legal age to make a will
- they are of sound mind (i.e. they have the mental capacity to dispose of their own property)
- this is their last will and testament, revoking all previously made wills and codicils
- they are not under duress or undue influence to make this will
A Personal Representative or Executor
It is highly recommended that a testator name a person or institution to act as personal representative of their estate. In some states this designated individual may be referred to as the executor of the estate. This person is responsible for settling the decedent’s debts, managing their assets throughout the probate process and ensuring the will is carried out as written. It may be wise to name an alternate person to serve in this role just in case the first choice is unable or unwilling to act or predeceases the testator.
If a personal representative or an executor is not named in a will, then the probate court will need to appoint someone to administer the estate.
Beneficiaries to Receive Specific Assets
The people who benefit from a will are referred to as beneficiaries. A testator can use their will to provide instructions specifying which possessions they want to go to certain people. Beneficiaries can be named to inherit cash, personal property or real estate. The will should also specify whether assets are to pass directly to beneficiaries or whether they should be sold and the proceeds divided among the beneficiaries.
A will can also name alternate beneficiaries to receive the testator’s assets in the event that the first listed beneficiary/beneficiaries disclaim their inheritance or are not alive to receive it.
Directions for Allocating Business Assets
Business assets can be a little more complex to plan for and are often disposed of separately from personal assets. If a loved one doesn’t have a written plan for how their business assets should be handled, encourage them to see an experienced estate planning attorney to ensure that their wishes are clearly indicated in their legal paperwork.
Plans for How Debts, Expenses and Taxes Should Be Paid
When a person dies, their personal debt continues to exist, but the burden of repayment falls on their estate. A will should spell out a testator’s wishes regarding how to settle debts and final expenses, including personal debt, business debt where applicable, funeral costs, probate costs, estate taxes and inheritance taxes. In some cases, a person will name a specific source, such as a bank account or the proceeds from the sale of a particular asset, to cover these costs. This is an important step that shouldn’t be skipped because outstanding debts can prevent beneficiaries from receiving the gifts that the testator intended to pass on to them.
Cancellation of Debts Others Owe
A person can also state in their will that people who owed them money must repay that debt (along with any interest due) to their estate. On the other hand, a testator can also choose to forgive debts owed to them as long as their estate is solvent (i.e. they don’t die owing more than their estate is worth). They must simply stipulate that they are cancelling a certain amount of debt and exempting the borrower from repaying both the principal and any accrued interest.
Special Instructions for Maintaining Real Estate
If a testator names someone to inherit their home or any other real property, they should list any specific instructions for its care and upkeep in the will.
A Care Plan for Surviving Pets
These days, many people think of their pets as family members. It only makes sense to include cherished animals in one’s estate plan. Most state laws consider pets to be property and therefore they cannot own property or inherit a deceased owner’s assets. To ensure pets go to a good home, it’s important for a testator to name someone in the will who will take possession of them. The testator may also leave this new owner an amount of money to help cover pet care expenses.
Estate Planning Isn’t Always a Do-It-Yourself Project
The above estate planning elements are some of the most basic things people include in their wills. Keep in mind that other asset types may require extra consideration, additional planning and solid legal expertise to dispose of as desired. The same goes for more complex situations, such as creating an estate plan that will continue to support a dependent loved one with special needs.
While it is possible to draft a valid will without a lawyer’s help, this move comes with risks. Even if an aging loved one doesn’t have substantial assets to pass on, a carefully crafted estate plan can still be a valuable gift for surviving family members. Struggling through the estate administration process with a poorly written will (or no will) for guidance can place additional stress on loved ones who are already grieving.
To find a local lawyer who can assist with discussing or drafting estate planning documents like wills, search the AgingCare Elder Law Attorney Directory.