How to Write Your Own Will

You may not be able to take it with you, but you can help control where it goes if you learn how to write your own will, including how a will should be written, alternatives to wills and uniform probate code.
By the MOTHER EARTH NEWS Editors
July/August 1985
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Have you (to name an example that many parents would find especially disturbing) thought about who would be your children's guardian should you and your spouse both die in a traffic accident?
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You may not be able to take it with you, but you can help control where it goes if you know how to write your own will.  

True, you may not feel as if you're on your last legs, and your wealth may not amount to a hill of beans anyway, but there are still a number of reasons why you should consider learning how to write your own will. Only by leaving a written testament can you be sure that events following your death will proceed the way you would have wished. What's more, you can probably write your own will— without a lawyer's aid—in a few hours' time.

Of course, the most obvious (and common) reason for having a will is to ensure that, after your death, your property will be passed on to the people of your choice. Each state has provisions for distributing the wealth of people who die without a will (called dying intestate), but you might be surprised by the nature of some of those regulations. Is Big Brother planning to take care of your relatives in the manner in which you'd want him to?

But ensuring your family's inheritance isn't the only, or even necessarily the best, reason for writing a will. Have you (to name an example that many parents would find especially disturbing) thought about who would be your children's guardian should you and your spouse both die in a traffic accident? In the absence of grandparents, the court could very well end up appointing someone . . . a person you might not even have known. Similarly, unless you specify the person—known as the executor—to administer the distribution of your property, the court will appoint someone to do the job.

A properly prepared will can also simplify probate (a legal process that mostly serves to increase the wealth of attorneys and governments), thereby preserving your wealth for distribution to your heirs. Complicated probate, where potential heirs contest the distribution of an estate, can result in as much as 20% of your wealth wandering off in lawyers' fees.

As you can see, then, there are good reasons for writing your own will. Read on, and we'll tell you how to do it.

BURIED IN PAPER

Over the centuries, the legal process of inheritance has become one of the most complicated, jargon-ridden, unnavigable mazes of the entire judicial system. But if you write a simple will that fulfills a few minimal requirements, there's very little that you'll need to know about the quagmire of probate. The whole secret to successful probate is to avoid the process to whatever degree possible.

Anyone whose estate is within the federal estate tax exclusion levels—$400,000 for 1985, $500,000 for 1986, and $600,000 for 1987 and thereafter—should be able to do a competent job of planning his or her own estate, including writing a will. Unless you're really loaded or there is some exceptional aspect of your estate (such as a complicated trust or children by different marriages), you simply don't need to pay an attorney $100 or so to fish a standard will form from a book . . . instead, just follow the instructions below.

HOW SHOULD A WILL BE WRITTEN?

Though some states accept handwritten wills that aren't witnessed (called holographic wills, about which we'll have more to say later), it's always better to type a will and have it properly witnessed as described below. This sort of formal preparation doesn't mean that you have to resort to legal jargon. Just type your will in clear, straightforward language, and include any of the following items that are applicable:

* Make it clear at the beginning that it's your intent to write a will and that you are possessed of your full mental capacity. Name yourself, and include the location of your residence at the time of the writing. A will isn't considered legally binding unless it makes it clear that you're aware that you're writing a will-hence the familiar expression, "I, John Doe, of 314 Myopia Street, Anytown, U.S.A., being of sound mind and body, do hereby make this my last will and testament." (In legalese, the person writing a will to dispose of his or her estate is called the testator, and that person's distribution of wealth is called a testament.)

* Revoke any previous wills and any amendments (called codicils) made to them.

* Name your current spouse, making it clear that this is the person you will be referring to as your husband or wife, and give the names and birth dates of all your children.

* Name the executor of your estate and his or her location. (It's best, and in some states imperative, that this person reside in the same state you do.) Include an alternative person in case your first choice is unable to serve. Your estate's executor will normally be your spouse or another close, responsible relative. His or her responsibilities will include administering the passing of your property to your heirs, taking care of debts from funds in your estate, paying taxes, etc., so some business sense is a useful attribute in an executor.

* if you trust your appointed executor sufficiently—and you certainly should—specifically state that no bond on the executor need be held during the period of probate. If you die without a will, the court will probably require a bond of the executor it appoints, thereby using up a part of your estate in bondsman's fees.

* Name and give the location of a guardian (and at least one alternative) for your minor children.

* Give special instructions for paying your debts, forgiving debts owed to you, handling your burial, paying your family's expenses during probate, setting up any special trusts for minors, etc. Name the trustee of any trusts you create for minors, even if that person is the same as your estate's executor.

* State that anyone who receives anything under the terms of the will must outlive you by a certain period of time; this is called a survival clause. Under the Uniform Probate Code, this period is five days, but you might want to extend it to 30 days, three months, or even six months. In the event of a common disaster, this will prevent your estate from passing through probate (and being exposed to estate taxes) twice or more in rapid succession.

* Make general gifts of intangible properties such as money, stocks, and bonds by naming the individual or organization that is to receive them. Some states limit the amount that may be left to charitable organizations, corporations, etc.

* Make specific gifts of real and personal property by naming the individuals who are to receive them. Bear in mind that there are limits to who can receive how much under state laws of succession and distribution. If you're leaving money to your executor, for example, be sure to mention that person by name, not as executor, so that the money won't be confused with a payment for services. Another particular example holds that a testator cannot leave more than one-tenth of his or her estate to a person with whom he or she lived as husband or wife without being married (a situation called concubinage). We can't emphasize too much the complications of cohabitation or children by multiple marriages. If you face either of these situations, consider getting professional help. And at the very least, it would be wise to stop at your public library and read the paragraphs under the headings Community Property (if applicable), Death, Husband and Wife, Intestate Succession and Distribution, and Wills in the Martindale-Hubbell Law Directory.

* Make a statement about who will receive the remainder of your estate (you're unlikely to list everything specifically). This is called a residuary clause.

* If you specifically want to disinherit your spouse or children, you must state that you intentionally do not leave anything to them. Bear in mind, however, that each state provides for a minimum amount that spouses (and sometimes children) must receive, and there may be specific restrictions on reasons for disinheritance. For example, in Louisiana there are 12 specific situations in which you can disinherit a child . . . one of them allows you to disinherit a child who refuses to pay a ransom when you're held captive. If you disinherit your spouse, he or she may opt to take an elective share of your estate despite your intent. This amount is often similar to that which your spouse would have received if you had died without a will.

* If you want a child born out of wedlock to receive part of your estate, name the child and state your intention. Some states allow for illegitimate children to be included automatically; others disinherit them unless their bequest is stated in the will.

* When you are ready to execute your will, gather your witnesses in a room where each can see what you are doing. State to your witnesses that you are about to sign your will and that you would like for them to sign as your witnesses. Sign and date your will, and initial each page in the presence of the witnesses. Then ask the witnesses to sign a statement saying they saw you sign the will and that they signed their names to the statement in your presence and in the presence of each other. This is called attestation. The number of witnesses required varies, but you'll be safe anywhere if you have three. The witnesses need not read the will, but they must be told that it is your will. Witnesses may not be allowed to receive part of your estate under the provisions of your will. In some states, a witness who receives a bequest is disallowed, which could void the will; in others, a witness may not inherit under the will but isn't disallowed as a witness; in still others, witnesses are limited to taking what would have been their intestate share of your estate. Because of the enormous potential for confusion, it's generally best to choose witnesses who won't receive anything under the terms of your will and who aren't related to anyone who will.

In addition to the statement that the witnesses saw you sign the will, and that they signed their names in your presence and in the presence of each other, and that you were mentally competent at the time, the attestation should contain a mention of the number of pages in the will and note any erasures or corrections (though it's preferable that there not be any).

* Though it's not required in most states, self-proof of will can help ensure that your will is accepted as legally binding. A self-proof clause should be placed at the end of your will and should state that the witnesses did witness the signing and that they swear to this in front of an official. They will sign once again, and their signatures will be followed by the date and the statement, signature, and seal of the official.

ALTERNATIVE WILLS AND ALTERNATIVES TO WILLS

As we mentioned previously, there is such a thing as a valid handwritten, unwitnessed will—called a holographic will. Such a will is not accepted in all states and should be avoided if at all possible, because it's relatively easy to challenge. Nonetheless, it's possible that you'll find yourself in a situation where you can't execute a proper will—a predicament that a soldier in combat could face, for example—and in such instances a holographic will may be the best alternative. Make sure the entire document is in your handwriting, including all the applicable provisions mentioned above, then sign it and date it at the bottom. Some states require that the holographic will be placed with your other valuable papers. A few states also recognize a verbal will delivered to disinterested witnesses—called a noncupative will. Consider this only as a last, desperate possibility, because it's unlikely that it would be accepted without complications.

Some married people choose to write a mutual will, and some states honor such a cooperative agreement. Nonetheless, separate wills are a better approach, and they aren't that much more difficult to prepare.

Rather than writing a will at all, some people prefer to form what is called a revocable living trust. This is a legal agreement that assigns your property to your chosen heir(s) but gives you full use of and discretion over the property while you're alive. For example, you and your spouse might form a trust which provides that your property pass to your child when you both have passed on. Technically, the property belongs to the child as soon as the trust is executed, but you may maintain control (with the ability to revoke the trust) and receive the earnings during your lifetime. When you both die, the child takes control, unless you've arranged for an executor to manage the property until your child reaches a certain age.

A revocable living trust avoids probate altogether, though estate taxes are still collected. This is a distinct advantage, but it should be weighed against the trouble and expense of setting up and maintaining the trust. Bear in mind that your title to all property must be transferred to the trust-banks must be notified, deeds modified, auto titles transferred. If someone other than you is the trust executor there will also be executor fees.

THE COMING OF UNIFORM PROBATE CODE

Each year, more states accept the Uniform Probate Code (often in a somewhat modified form) as the basis for their laws of inheritance. This document greatly simplifies the process of passing on wealth. For example, it provides that someone who has disappeared is presumed dead after five years, that real and personal property are considered equal for inheritance purposes, and that adopted children are fully privileged heirs.

If you die without a will in a UPC state, your spouse gets the first $50,000 and half of the remainder; your children get the other half. If you brought your children into the marriage, they and your spouse split fifty-fifty. If your spouse and parents survive and there are no children, your spouse takes the first $50,000 and half the remainder; your parents take the rest. All community property goes to your spouse. As a minimum, your spouse may elect to take one-third of your augmented estate (an amount that includes certain gifts made during your lifetime without the consent of your spouse). In addition, the UPC provides for a homestead exemption of $5,000, a property exemption (a car, for example) of $3,500, and an allowance for the family.

The terms of the Uniform Probate Code go a long way toward making inheritance a reasonably simple and fair process. But even if you are fortunate enough to live in a state that has adopted the code's provisions, the best way for you to take care of your heirs is to put it in writing.

EDITOR'S NOTE: For examples of specific is will forms, more information on writing wills, and an explanation of revocable living trusts, see John C. Howell's book How to Write Your Own Will (1985, Liberty Publishing Company, Inc., Cockeysville, MP, $9.95). 


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