How to Write a Will

What is a Will?

A will, also known as a last will and testament, is a legal document that outlines your wishes regarding the distribution of your assets, the care of your dependents such as minor children or pets, and the management of your affairs after your passing. You can write a will yourself, with a lawyer or you can use an online, will writing platform. 
 

A Will is important for several reasons:

• It allows you to specify how you want your assets and property to be distributed after your passing, because without a will, the distribution of your assets may be determined by state laws, which may not align with your wishes.
   
• If you have minor children, a will enables you to name a guardian for them. This ensures that someone you trust will take care of your children and make important decisions on their behalf.
   
• In your will, you can appoint someone you trust who will be responsible for carrying out your wishes as outlined in the will.
   
• A clear and legally valid will help minimize potential conflicts and disputes among your family members regarding the distribution of your assets. It provides clarity and reduces the likelihood of legal challenges.
   
• A well-crafted will can include strategies to minimize estate taxes, ensuring that more of your assets pass to your chosen beneficiaries rather than being taxed.

Components of a Standard Will

A last will and testament typically includes several key components to ensure the clear and lawful distribution of a person's assets and the execution of their wishes after their death. Here are the main components of a will:

1. Introduction and Identification: The first thing that should be included in a will is the introduction and identification. It will include:

• Your full legal name (testator).
• Declaration that it is the last will and testament.
• A legal capacity statement stating that you, the testator, are of sound mind and not under duress.
   

2. Appointment of a Will Executor: A will also includes the appointment of an executor who is the person responsible for carrying out the terms of your will. You should also have a successor executor in case the primary will executor is unable or unwilling.

3. Guardianship Provision (if applicable): If you have minor children or dependents, your will should also include the identification of a guardian for them. 
 

4. Asset Inventory: While planning a will, you may need the expertise of an Estate Planner or Financial Advisor. These professionals can offer comprehensive advice on various aspects, including, asset distribution, tax planning, trust formation, insurance, and business succession planning. This is because you need to create a detailed list of all your assets, including real estate, bank accounts, investments, personal property, etc.
 

5. Debts and Expenses: This part of the will talks about any existing debts you have. You will outline each one and explain which of your assets should be used to repay those debts. 
 

6. Distribution of Assets: This is the heart of the will where you give specific instructions on how the assets should be distributed among your beneficiaries. It also includes alternate or contingent beneficiaries in case your primary beneficiaries are unable to inherit.
 

7. Residuary Clause: This is also known as a residuary provision or residuary bequest. It is the part of your will that addresses the distribution of any remaining assets or property not explicitly mentioned in other parts of the will. It serves as a catch-all provision to ensure that all of your assets are covered and distributed according to your wishes. 
 

8. Conditional Clause: A conditional clause in a will introduces specific conditions or requirements that your beneficiaries must meet to inherit or receive their share of the estate. You can do this to ensure that the distribution of your assets aligns with your intentions and values. Examples of conditional clauses are: 

• Age-Related Conditions: where a beneficiary must reach a certain age before they are entitled to receive their inheritance. 
  
   
• Education or Career Achievements: where the beneficiary must attain a certain level of education or achieve success in a specific career before inheriting. 
  
   
• Marriage or Family Status: where the beneficiary must be married or have children before receiving their inheritance. 
  
   
• Behavioural or Lifestyle Conditions: where the beneficiary is required to refrain from engaging in certain activities or lifestyles that you disapprove of.
  
   
• Charitable Contributions: where you specify that a portion of the estate is to be donated to a specific charity, and beneficiaries receive their inheritance only if they actively participate in or support the chosen charitable cause.
  
   
• Custody or Care Conditions: where a beneficiary may be required to take responsibility for the care of a family member to receive their inheritance.
   

9. Funeral and Burial Wishes: These are instructions regarding your funeral arrangements and burial or cremation preferences.
 

10. Witnesses and Notarization: A will should have your signature and the signatures of your witnesses. You may also need a Notary public acknowledgement in some jurisdictions for added legal validity.
 

11. Codicil: A codicil is a legal document that is used to make amendments, modifications, or additions to your existing will. Instead of creating an entirely new will, a codicil allows you to make specific changes to your will without rewriting the entire document. It must be executed with the same formalities as your will and is considered a legal part of the original will once properly executed. Codicils are often used when you want to update beneficiaries, revise bequests, or make other minor changes to your will after the initial document has been created.
 

12. No Contest Provision: A no Contest Provision typically refers to a clause in a legal document, such as a will or a contract, where one party agrees not to contest or challenge certain conditions or decisions specified in the document. Your no-contest provision may state that if your beneficiary challenges the terms of your will, they will forfeit their right to inherit any assets. For example, you can specify that your child cannot inherit their property if they refuse to get married. To address the possibility of any person attempting to oppose the provisions of your Will, a no-contest provision is important to have. You can include this clause yourself but consult your lawyer for advice on how best to go about it. This provision is non-negotiable and states that no person, even a relative, can change any of your wishes in your will. 

Taking proper legal precautions to seal the validity of your will is an important step in protecting your estate and ensuring your wishes are honored. Another way to add an extra layer of protection over your will is by including a self proving affidavit.

What is a Self Proving Affidavit?

A self proving affidavit is a sworn statement attached to a will that is signed by you and the witnesses. Its purpose is to simplify the probate process by providing a way to authenticate the will without the need for your witnesses to appear in court.

Typically, when a will goes through the probate process, the court needs evidence to prove that it is valid. In the absence of a self proving affidavit, your witnesses might need to testify in court to confirm your signature and the circumstances of the will's execution. This process can be time-consuming as it involves locating and securing the testimony of your witnesses.

 

How do I start writing my will?

 

Types of Wills 

There are several types of wills for different purposes. Let’s take a look at some common types:

1. A Simple Will: This is the basic will that outlines how your assets should be distributed after your passing. It is usually used when your estate is straightforward, uncomplicated, and has no complex issues to address.
   
    
2. Joint Will: This is a will created by two people, usually spouses, to outline how their combined assets will be distributed. After one person dies, the other cannot change anything that was written in the will. 
   
    
3. Mutual Will: This is similar to a joint will, but a mutual will involves two individuals making separate wills that mirror each other. It is often used by spouses to ensure their wishes are respected even after one of them passes away.
   
    
4. Living Will (Advance Healthcare Directive): This will is written to take care of your interests, while you are still alive. It focuses on healthcare decisions rather than asset distribution. It outlines how you would like to be treated in the event that you fall sick and are unable to communicate. 
   
    
5. Pour-Over Will: This will is used in conjunction with a living trust. It ensures that any of your assets not already included in your will shall transfer into the trust when you pass away.
   
    
6. Holographic Will: This is a handwritten will that is entirely written, dated, and signed by hand, by you. Because it is written by hand, some jurisdictions like Alaska, Michigan or Nevada, do not require you to have witnesses.
7. Nuncupative Will (Oral Will): A nuncupative will is an oral or verbal will, usually made during a serious illness or imminent danger of death.
   
    

What is an International Will? 

An international will, also known as an "international testament," is a type of will that tries to simplify the probate process across different countries. It follows the guidelines of the Hague Convention on the Conflicts of Laws Relating to the Form of Testamentary Dispositions. 

The convention seeks to simplify the process for wills that have international characteristics. This is done by setting up the International Will which is a uniform law that is recognised as a valid form in all countries that are party to the convention. Consult with a legal expert who knows all about international estate planning if you are considering this type of will. 

Types of International Wills

There are five types of international wills:

1. The Holographic Will: This is a handwritten will made by you. It needs to be entirely in your handwriting, dated, and signed.

2. The Single International Will: this will cover your entire estate across different countries. It provides a unified plan for the distribution of assets in various jurisdictions.

3. The Successive Will: A Successive International will consists of a series of wills, each dealing with assets in a specific country. It provides the flexibility for updating or changing specific portions of the estate plan without rewriting the entire will.

4. The Basic International Will: This refers to a will created following the guidelines of the Hague Convention on the Conflicts of Laws. It contains the essential elements required for an international will, such as your identity information, information about your executors and beneficiary, residuary clauses, mode of distribution of your assets, etc, making it valid across participating countries.

5. The International Military Will: This will is designed for members of the military who may be stationed in different countries. It complies with the international will standards but also has specific provisions related to military service.

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