How to Write a Will
Writing a will is an essential thread that binds your wishes and provides a guide for the smooth transitioning of your legacy. Yet, writing a will can be an enigma, which is probably why you may have been procrastinating. In this blog post, we take you through the process, breaking each step down so it’s simple and easy to understand, empowering you with the means to leave a legacy that reflects your wishes and values.
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.
Components of a 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, 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. 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. For example, a no-contest provision may state that if your beneficiary challenges the terms of your will, they will forfeit their right to inherit any assets. To address the possibility of any person attempting to oppose the provisions of your Will, a no-contest provision is important to have. This provision is non-negotiable and states that no person, even a relative, can change any of your wishes in your will.
11. 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.
12. 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.
How to Start Writing Your Will
We’re going to break down the process of writing a will into an easy process for you to understand. We recommend consulting an estate planning lawyer to understand what applies to your specific condition during this process.
Decide how you Would Like to Write Your Will
There are three ways you can write your will:
- With the help of a lawyer.
- Through an online service.
- By yourself.
Working on your will with a lawyer is the safest way to ensure your will is 100% accurate and comprehensive. This is because lawyers specialise in estate planning and probate law. They have a deep understanding of the legal requirements and complications involved in creating a Will and will help you avoid making detrimental mistakes. Lawyers can tailor your will to your specific circumstances to address your unique situations and any special requests you may have.
You can use an online will-creation platform if you have a simple estate plan and no complex assets. It is easier, cheaper and less time-consuming.
Choosing to write your will yourself is a lot riskier than the first two options. For your will to be valid, it has to meet your country or state’s requirements. If it doesn’t, it can be deemed invalid and a probate court will determine what happens to your assets. We don’t think anyone would like that.
Take an Inventory of Your Assets
An inventory helps ensure that you account for all your possessions, financial accounts, and assets, and it provides a clear picture of your estate for distribution among your beneficiaries. Here are a few things to consider when taking an inventory of your assets for your will:
- Make a comprehensive list of your assets, including real estate, personal property (such as jewellery, furniture, and collectables), financial accounts (bank accounts, retirement accounts, investment accounts), life insurance policies, and business(es) you may have.
- Note any outstanding debts or liabilities like mortgages, car loans, credit card debt, and other financial obligations. Identifying debts is necessary for understanding the net value of your estate.
- Specify how each asset is owned and what documentation is available. For real estate, note the title and deed information and include succession plans or arrangements for the transfer of ownership of each asset.
- Assign a value to each asset. Some assets, like real estate or valuable possessions, usually require professional appraisals. For financial accounts, use the current market value.
- Include digital assets in your inventory like online accounts, digital files, and cryptocurrencies and specify how you want these assets to be handled.
- Consider keeping a digital copy of your asset inventory. This can be stored securely and easily updated when you need to. Share the location of this digital document with your will executor or another trusted individual.
- Regularly review and update your asset inventory. Life changes, such as divorces, marriages, births, or deaths, will create the need for adjustments to your estate plan.
- Seek guidance from legal and financial professionals during this process.
Use the Necessary Legal Language.
Wills are legal documents so all wills must meet certain criteria to be considered valid. To ensure your will is recognized by the law, before writing anything else, you have to:
- State clearly that this is your last will and testament.
- State your full legal name so there is no contest of who the will belongs to.
- State that you’re of sound mind, and not writing under duress.
These statements are important so anyone who reads your will knows that it is your true, last intentions. This helps to avoid any confusion and it discourages people from contesting your will in court.
Choose Your Will Executor
Choosing an executor for your will is an important decision that involves selecting someone you trust to carry out your wishes and manage your estate after you pass away. When choosing this person, you should consider the following:
- Are they trustworthy and reliable?
- Do they have good organizational skills?
- Are they financially literate?
- Are they willing and available?
- Are they familiar with your affairs?
After choosing your primary will executor, state clearly who they are in the will. It is also important to name a few successor executors in case your primary executor is unable to perform their duties. When choosing your successor executors, use the questions above as a guide as well.
Determine Your Beneficiaries and Outline Instructions
A beneficiary is a person or entity designated to receive assets, benefits, or rights from your estate, trust, insurance policy, or other financial arrangement in the event of your passing. To guarantee your assets are properly distributed, you have to specify the beneficiaries and give clear instructions on what you want. You can name anybody or entity as a beneficiary, be it family members, friends, businesses, charities, or even total strangers.
You can leave different things to different beneficiaries, but make sure each person or business’s full name is clearly stated with what they are inheriting to avoid any future disputes. Feel free to include a note explaining why each beneficiary is inheriting which asset.
Choose a Guardian for Your Minor Children or Dependents
This is a very important aspect of your will. If you have any minor children or people dependent on you, you should name the guardian you trust to take custody and good care of them in your absence. Remember to state their full names clearly.
Sign Your Last Will and Testament
Your signature is a very important part of your will that makes it legally binding. However, signing it on your own isn’t enough to make it legal. You need to sign in front of two disinterested witnesses who will sign as well. Disinterested witnesses are witnesses who will have no part in your will. They will not be beneficiaries of anything you include in your will.
Translate Your Will
Translating your will can be important if you have assets or beneficiaries in a country where the official language is different from your own or if your executor speaks a different language from the one you wrote your will in. Ensuring that your will is properly translated is important for clarity and legal validity. To do this, you should have a certified translation service to take care of translating your will. Here's how translation services, like Translayte, can help:
- We Provide Qualified Translators: When translating your will, it's necessary to work with qualified and experienced translators and Translayte has certified translators who are fluent in over 100 languages, with expertise in the legal terminology your will needs.
- We include Notarizations and Legal Validations for Translations: Your jurisdiction may require a notarization or an affidavit of translation which is a sworn statement by the translator affirming the accuracy of the translation. This document may need to be notarized.
- We Keep Original Documents Intact: We always keep the original version of your will in its original language. The translated version should be seen as a supplement and should not replace the original. Both versions should be stored securely.
Keep Your Will Safe
After your will is written, signed, and witnessed, make copies of it and store them in a safe place where you can easily access it. Tell your loved ones and your executor where you have kept it, so they know where to find it when the time comes.
What not to Include in a Will
- Joint Tenancy Property: Joint tenancy is a form of property ownership where two or more individuals, often called joint tenants, hold equal and undivided shares in a property. Joint tenants each own an equal share of the property. If there are two joint tenants, each has a 50% interest; if there are three, each has a one-third interest, and so on. Properties held in joint tenancy grants the right of survivorship to your joint tenant automatically by law, so, when you pass away, your share of the property is transferred directly to the living joint tenant(s).
- Assets With Beneficiary Designations: When you name a beneficiary in an asset such as a life insurance policy, retirement plan, stocks and bonds, proceeds from a payable-on-death bank account, etc, that policy operates outside your will. In this case, proceeds from these assets are automatically transferred to the beneficiaries you mentioned.
- Funeral Instructions: Wills are often not read until after the funeral, so including detailed funeral instructions may not be practical. Instead, share your wishes with family members or include them in a separate document.
- Conditions on Gifts Based on Illegal Activities: You cannot include conditions in your will that require someone to engage in illegal or unethical activities to receive their inheritance.
- Certain Trust Assets: If you have assets in a trust, they may not be governed by your will. The terms of the trust control the distribution of these assets.
- Pets: While you can express your desire for the care of your pets, pets themselves cannot inherit property. Instead, create a pet trust or make informal arrangements with a trusted friend or family member.
- Assets Already Designated in Other Legal Documents: Assets governed by separate legal documents, such as a prenuptial agreement or divorce settlement, are typically not controlled by your will.
What Happens if You Don’t Make a Will?
If you pass away without a will or your will is deemed invalid, the probate court will then determine who will receive your assets based on your state’s laws.
Can you Write a Will Without a Lawyer?
Yes, you can write a will without a lawyer, either by yourself or through online platforms. However, you need to take extra precautions to make sure it meets all the legal requirements of your state or it could be deemed invalid.
When Should You Write a Will?
You should write a will if you are over 18 years old and have acquired any form of wealth, real estate, or property.
What is the Difference Between a Will and a Living Trust?
A will is a legal document that outlines your wishes for the distribution of your assets after your passing and may go through the probate process. A living trust, on the other hand, is a legal entity created during your lifetime to hold and manage your assets, allowing for more efficient and private distribution without the need for probate.