With all the complexities involved in writing your Will, it can be difficult to know why, when, and how to tackle such an important task. While you should always consider consulting and working together with an experienced estate planning attorney to guide you through the process, it’s often a good idea to educate yourself before you get started. Here’s some useful information about why and how to write a Last Will and Testament (or a Will, for short) in 2022.
Why write a Will?
Having a Last Will and Testament is incredibly important, as it details what you want done with your estate, possessions, and assets after your death. Despite its value and purpose, the majority of adults in the U.S. — 54 percent, according to a recent Gallup poll — do not have a Will. This can create numerous problems for their loved ones, as it complicates the legal process surrounding their estate after their death.
Dying without a Will in Virginia, for example, means your estate possessions will go through the state’s intestacy laws. If this occurs, your assets may get distributed against your wishes and your loved ones may not get what they are entitled to.
A Will legally protects your loved ones and your assets by clearly stating how you would like your possessions distributed after your death. Even if you think you don’t have many assets, you should still create a Will so that the proceedings after your death are not complicated and your wishes are fulfilled.
When to write a Will
As the saying goes, there is no time like the present. A person should write their Will once they’ve accumulated any amount of assets. Essentially, if you have a particular preference as to where, or to whom, your accumulated assets should be given once you die, you should write a Will.
It’s also important to remember that once you have created a Will, it should be regularly reviewed and updated. This is especially true during major life changes, such as getting married, having children, buying a house, or starting a business. Some experts even recommend that a Will should be updated or reviewed every five years.
What type of Will is best?
There are four main types of Wills — simple, testamentary trust, joint, and living — a person can write, depending on their situation:
A so-called Simple Will is the most common type, as it dictates who will receive your assets and names a guardian for your minor children in the event of your passing.
A Will with testamentary trust provisions places your assets in a trust, which is controlled and managed by a designated trustee. This type of Will is used for beneficiaries who may be minors or if you elect to place specific conditions on inheritances and how they are distributed. It is important to understand that funding a trust for named beneficiary through a Will is not often ideal, and it may be prudent to discuss whether another document, called a Revocable Living Trust, may be better suited to protecting your assets and the beneficiaries you wish to leave them to.
A Joint Will is written by two or more people and acts as a separate Will for each party. These are typically created for spouses or domestic partners who have the same terms in their Will. Joint Wills, however, are highly disfavored and no longer commonly used, because the survivor spouse or domestic partner cannot change the terms of a joint will after the death of one of the writers.
A Living Will is not a Will in the sense of death; rather, this document is used during your lifetime to clearly identifies the end-of-life medical treatments you want — or do not want — to receive in the event you become incapacitated and cannot make autonomous decisions about your final medical care needs if you become terminally ill or are in an irreversible coma. The Living Will names someone to make decisions on your behalf under those circumstances.
How to write a Will
When deciding the terms you want written into a Will, there are certain steps you should take with an experienced estate planning attorney in order to ensure that it is done properly. This is not the time to “DIY” — with a document as important as a Will, it’s essential to have an attorney familiar with federal and state tax law as well as local estate planning statutes review your planned provisions with you and make sure the document is properly drafted.
Once you’ve found the right attorney, you will work through the following stages of drafting your Will with them:
- Taking stock of all your assets and debts
- Deciding on beneficiaries for each of your assets that will pass through the Will
- Choosing an executor for your Will
- Naming a guardian for your minor children in your Will (if applicable)
- Signing the Will in the presence of two competent witnesses and a notary public
- Reviewing and updating your Will every five years