What’s a Will and Why Do I Need One?

Let’s face it. The last thing most of us want to do is think about death. It’s easy to keep putting off making a plan for the inevitable.

But if you don’t want someone else to control what happens to your family and your money, making a will is a no-brainer.

It’s an essential document. And yet, 71.6% of Americans do not have an up-to-date will, according to a 2016 survey conducted by USLegalWills.com. According to the data, only 8.6% had a will but it was out-of-date. And 63% of Americans had no will at all.

There’s more.

Two-thirds of Americans over the age of 35 don’t have an up-to-date will. Think older Americans have their estate planning together? Only half of Americans over the age of 65 have up-to-date wills in place.

A basic will doesn’t have to cost a fortune.

Being rich doesn’t make people more responsible, when it comes to preparations. The survey showed that wealthy Americans are no more likely to have written their will and more likely to have an out-of-date will.

Here are some basics on wills and how they work:

What’s a will?

A will is a written, legal document that expresses what you want to have happen to your property, including real estate, bank accounts, investment portfolios and the contents of your home. It may also used to decide how debts and taxes are paid.

It also includes directives for the guardianship of your children, if you die before they reached their majority, which ranges from 18 to 21, based on state law.

What do people put in a will?

Wills mainly pertain to people and property.

The top provision concerns the guardianship of children, generally defined as anyone under the age of 18. If a parent dies and there are no additional parents to care for the children, a guardian will be appointed by a state court.

A will gives the court guidance on who you want to assume responsibility for your children in the event of your death. Without a will, it will be up to close family and friends to petition the court, and explain who they are and why they want to care for the child.

Provisions of the will pertain to what happens to a person’s property, regardless of whether they are billionaires or have a modest nest egg. When someone dies, all of his or her assets — money, stocks, bonds, real estate, even their clothes — need to be collected and dispersed.

Property owned by more that one person may pass along to the other owner in what’s called “right of survivorship,” in which the house, car or other type of asset is automatically given to the surviving owner. Then assets with a designated beneficiary, such as life insurance and retirement accounts, will go to the person named in those documents.

Any items that have no designated beneficiary  Any items that have no designated beneficiary would most likely be a part of your probate estate, from brokerage accounts to art and other personal effects. Some people choose to get specific about what items go where, and other people leave it to the executors of the will.

What’s an executor?

Appointing an executor is one of the most critical parts of creating a will. (In some states, the executor might also be called a personal representative or administrator.)  

Executors are personal representatives. They’re responsible for all the affairs of your estate after your death, including making sure expenses, debts and taxes are paid, and that property is collected and dispersed according to your wishes.

The executor typically receives a modest payment for his or her role in managing the affairs of the deceased person, usually a percentage of the estate, or a flat or hourly rate.

While it is common for spouses, parents or adult children to be named executors of your estate, you may designate anyone, including friends, cousins or siblings.

An executor should be someone you trust with your property, and who you believe will honor and carry out your final wishes. Heirs and survivors may try to contest an executor appointment, and will need medical and legal documents proving the executor is unfit for the job. The court will have the final say.

Is a will expensive? How long does it take?

A basic will doesn’t have to cost a fortune. The cost can vary depending on where you live and the size of the law firm that’s handling the will. What’s essential is that your will is valid in the state that you live in at the time your will is necessary to be carried out implemented by your executor.

Important to know! If you make a will in one state (say New York), and then move to another state, (say Georgia), that will may not be considered valid. It’s very important to make sure your will is up to date in the state that you are presently living in.

If you have a large and complicated estate, such as multiple properties, investment portfolios, businesses, or international bank accounts, you can expect to pay more.

If you choose to use an attorney, the process can take between three and six months. During that time, you’ll meet with an attorney to discuss the estate and the provisions you want to make in the will. The attorney will draft versions of the will, which you’ll need,to review and possibly change, before it is signed in the presence of witnesses.

What happens if I don’t have will?

People who die without a will have “intestate” estates. That’s the default inheritance set by each state, to determine who gets what. That can cause real problems.

The court will use a state-mandated priority list of beneficiaries, and disperse your assets to the people on that list. Generally, spouses and adult children are at the top of the list, followed by parents and siblings, then nieces, nephews and grandparents.

It’s unusual, but if there is no other family, the courts will then designate first cousins as beneficiaries, according to legal sources.

If you don’t want someone else to control what happens to your family and your money, making a will is a no-brainer.

Top takeaway

Leaving the fate of your children, the contents of your bank account, even your prized sports memorabilia up to the courts — or worse, squabbling family members — is something to avoid at all costs.

It’s necessary to look out for the best interests of your property, assets and children in the event of your death.