"What will" usually refers to creating a will and testament, a legal document detailing how you want your assets (money, property) distributed, who will manage your estate (executor), and who will be the guardian for minor children after your death, ensuring your final wishes are followed and potentially avoiding probate or disputes. It's a crucial part of estate planning that provides clarity and control.
A will, or a last will and testament, is a legal document that describes how you would like your property and other assets to be distributed after your death. When you make a will, you can also use it to nominate guardians for your children, dependents, or pets.
When someone thinks enough of you to include you in their will, it means you have a role to play in fulfilling their final wishes. This can range from receiving a specific bequest to ensuring that the terms of the will are executed as intended.
because you want to do something and not because anyone else has made you do it : She made the decision to leave of her own free will. No one told me to do it – I did it of my own free will.
A testamentary trust is a specific type of trust that's created as part of a last will and testament. A grantor (the creator of the trust) leaves instructions in their will for a named executor detailing how their assets are managed by a trustee and distributed to beneficiaries.
For trusts, the death of a beneficiary requires the trustee to follow the instructions laid out in the trust document. Often, a successor or contingent beneficiary is named to receive the share.
You can write your own will, especially if your situation is simple (e.g., leaving everything to a spouse/kids), but it's risky because you might miss crucial legal requirements or complex issues like trusts for minors, potentially costing your family more in legal fees later. DIY wills are only truly safe for very basic estates; for anything complex (business, significant assets, blended families, special needs), a lawyer is highly recommended to avoid errors that invalidate the will or create family disputes.
What Are the Three Conditions to Make a Will Valid?
Firstly, any person who writes a Will, or any part thereof, on behalf of the testator can be disqualified from inheriting, as is the writer's spouse. Similarly, the witnesses to a Will are not permitted to inherit from the deceased's estate.
An executor of an estate is usually a family member, but it can also be a close friend, lawyer, accountant, financial institution, or financial advisor. In some cases, the deceased can name more than one executor, called co-executors.
Drafting a will with an attorney
For simple wills, an attorney may charge a flat fee, typically between $250 and $1,000. In more complex situations, hourly rates are more common, and they usually range from $100 to $500 per hour.
By now, you can clearly see there are a number of things that absolutely should not be included in a will – jointly owned assets, life insurance or retirement accounts, property already in a trust, instructions that contradict other legal arrangements, and in many cases, disinheritances that will likely be challenged.
The best way to transfer property to children depends on your goals, but generally, using a Revocable Living Trust or a Transfer-on-Death Deed (TODD) (where available) are superior to gifting directly because they avoid probate, allow you to retain control, and often provide a crucial "step-up in basis" for capital gains tax purposes upon your death, minimizing taxes for your children. Gifting property now can trigger high capital gains taxes for your children later, while trusts offer control and tax advantages, but have upfront costs.
The main disadvantages of a will are that it must go through probate (a public, time-consuming, and costly court process), offers no control during lifetime or incapacity, becomes a public record, can be contested, and may not cover all assets (like jointly-owned property) or provide optimal tax planning, making living trusts a common alternative for more complex estates.
Online wills are convenient and cheap for simple estates but risk errors, while an attorney provides personalized advice, handles complex situations (like trusts or blended families), ensures state compliance, and offers peace of mind, though at a higher cost and time commitment. For simple situations, online might work, but an attorney is better for ensuring validity and avoiding future family disputes, with some even suggesting an online will is worse than no will if done incorrectly, notes.
In your will, you should:
Not all loved ones should receive an asset directly. These individuals include minors, individuals with specials needs, or individuals with an inability to manage assets or with creditor issues. Because children are not legally competent, they will not be able to claim the assets.
A living trust might be better if:
You want to avoid the probate process. You want your beneficiaries to have access to funds, property, or other assets while you're still alive.
Want to make your assets virtually untouchable by creditors and lawsuits? Equity stripping may be the answer. This advanced technique involves encumbering your assets with liens or mortgages held by friendly creditors, such as an LLC or trust you control.
The trustee holds the real legal power to manage and control trust assets, acting as the legal owner, but they have a strict fiduciary duty to follow the trust's written terms and act solely in the best interest of the beneficiaries, who hold the beneficial interest (the right to receive benefits). While the trustee has management power, beneficiaries have rights to information and can hold trustees accountable if they breach their duties, separating legal control from beneficial enjoyment.
The deceased estate 3-year rule refers to the time frame within which certain actions must be taken regarding a deceased person's estate. This rule is typically applied when the deceased individual did not have a valid will or testament in place at the time of their passing.