Wills are a key part of estate planning. And, as with everything else in estate planning, they can get pretty complicated.
But Snug has your back. Here’s what you need to know.
Making a will is affordable and quick with Snug
With Snug, you can make a will online in 30 minutes, for only $145.
There are several different kinds of wills
The three main types of will are:
Simple will
A “simple will” is what people usually mean when they talk about a will.
It sets out how your estate should be dealt with after the “testator” (the person who made the will) dies.
Testamentary trust
A testamentary trust is a trust that’s created when you die.
Your will sets out which assets should go in the trust, the beneficiaries of the trust, and any other conditions.
Joint will
A joint will is one you sign with another person — usually your spouse. The joint will then applies to both of you.
Joint wills have a significant drawback: they can’t be changed after one of the testators dies.
Other kinds of wills
You might also read about “living wills”. These are very different.
Rather than setting out what should happen to your estate when you die, they give instructions for your healthcare if you become too sick to make decisions.
The official name for living wills are “advance healthcare directives”.
There are a few other, less common types of will, too:
- Holographic will — these are handwritten and signed by the testator
- Nuncupative — these are dictated orally rather than written down
Many states don’t accept holographic and nuncupative wills.
What your will needs to contain
If you want a quick, painless probate (more on that later) your will has to include:
- Specific instructions: The clearer and more specific the instructions in the will, the less likely it is to be contested. That priceless Lego collection of yours? Write down exactly who should receive it.
- Witness signatures: For a will to be valid, you need witnesses to sign it, too. Typically, you need two witnesses, but it varies by state. You and your witnesses all have to be together when they sign it, and in some states the witnesses can’t be “beneficiaries” — that is, they can’t be named in the will as people who will inherit your stuff.
- A date: Your will needs to have a date on it. Why? Because if you make a new will (which is pretty common), the probate court needs to know which one is the most recent.
- A declaration that it’s actually a will: The “I hereby declare this my last will and testament” stuff sounds a bit pompous, but it’s important. It’s how the probate court knows the document they’re dealing with is definitely supposed to be a will.
- Notarization: Once you’ve got your will signed and dated, you can take it to a notary. In Louisiana, you have to get your will notarized, and in some states you can notarize your will instead of having it witnessed. Notarizing your will usually costs a small fee, but it tends to make the probate process go a bit quicker.
- “Sound mind”: You need a bit in the will that says you’re of sound mind to make the will. If you don’t have that, someone could contest your will. Having witnesses to your will is a way of proving you’re of sound mind.
- Anything else required by your state: Different states have different requirements when it comes to wills. Make sure you know yours — and that you comply with it — before you make your will.
Getting a will witnessed and notarized
In most states, your will isn’t valid without witnesses (in some cases it can be notarized instead).
In most states, these witnesses have to be at least 18, and they can’t be a “beneficiary” — which means they can’t be one of the people who will inherit your estate.
Witnesses should be “disinterested parties”, which means they’re not listed anywhere in your will.
When your will goes through probate, the court will ask your witnesses to come to court and confirm that they were there to witness you sign the will, and that everything’s above board.
If your witness(es) die(s) before you do
If your witnesses are of a similar age to you, there’s a good chance they might die before you do. Your will is still valid if that happens, but it can make the probate process longer.
The court can ask for proof of the person’s death. Your executor might have to prove it’s actually their signature, too.
You can solve this by making a new will with new witnesses.
Wills have to go through probate
When the testator dies, their will goes through probate, where a court checks that it’s valid and authentic, approves the executor, and then goes through all the testator’s assets.
While a will goes through probate, it can be contested.
If a will is straightforward and uncontested, probate can take a few months. More complex or contested wills can take years to get through probate.
The “executor” of a will is responsible for carrying it out
When you make a will, you have to appoint an “executor” or personal representative. It’s this person’s job to make sure the things specified in your will actually happen after your death.
They’re in charge of things like:
- Filing your will with the court and going through the probate process
- Gathering all the assets in your estate
- Letting your beneficiaries know what they’re entitled to
- Paying any estate taxes
- Making sure your debts are paid
It’s a lot of work. So when you choose your executor, make sure you choose someone with the time, energy and financial savvy to get it done properly.
Your executor can also be a beneficiary of your will.
Because of the work involved, executors are usually entitled to compensation.
The cost of making a will can vary significantly
There’s a bunch of factors that affect the cost of making a will.
Attorney fees
If you hire an attorney to help make your will, they might charge you an hourly rate, or they might charge a fixed fee for the work.
If you’re paying hourly, the total cost will depend on the complexity of your estate.
If you’re paying a fixed fee, make sure you’re clear on exactly what’s included for that fee.
Notary fees
If you decide to get your will notarized, there will usually be a small fee. In some states, it costs just a few dollars.
(Where the table says “N/A”, that means notaries can choose their own fees in that state.)
(Source: Nationalnotary.org)
Executor fees
The executor of a will has a lot of work to do. Because of that, they can generally expect some kind of compensation.
You can specify how much compensation the executor gets in your will. If you don’t, their compensation will vary from state to state.
The executor’s payment comes out of your estate when you die, so it’s not a cost you have to pay at the time of making your will.
If the executor of your will is also a beneficiary, it’s often in their best interests not to take a fee. That’s because executor fees are taxed as ordinary income, whereas, after estate taxes, they don’t have to pay taxes on the assets they inherit.
Many states are “reasonable compensation” states, which means it’s up to the probate court to decide how much the executor should be paid.
Reasonable compensation states include:
- Alabama
- Alaska
- Arizona
- Arkansas
- Colorado
- Connecticut
- Delaware
- Florida
- Hawaii
- Idaho
- Illinois
- Indiana
- Iowa
- Kansas
- Kentucky
- Louisiana
- Maine
- Maryland
- Massachusetts
- Michigan
- Minnesota
- Mississippi
- Nebraska
- New Hampshire
- New Mexico
- North Carolina
- North Dakota
- Pennsylvania
- Rhode Island
- South Carolina
- South Dakota
- Tennessee
- Utah
- Vermont
- Virginia
- Washington
States that set executor fees by statute include:
- California
- Georgia
- Missouri
- Montana
- Nevada
- New Jersey
- New York
- Ohio
- Oklahoma
- Oregon
- Texas
- West Virginia
- Wisconsin
- Wyoming
Making a will is affordable and quick with Snug
With Snug, you can make a will online in 30 minutes, for only $145.
If things change, you can update your will
There are several ways to update your will.
In most cases, it’s easiest simply to write a new will. Each new will you make will need to be signed, dated and witnessed.
Updating a joint will, however, can be a little different. Once one of the testators in a joint will dies, it can’t be changed.
You can also update your will by creating a “codicil”.
You can use your will to appoint a legal guardian for your children
As well as deciding what happens to your financial assets, you can also use your will to appoint a legal guardian if you have children under the age of 18.
When your will goes through probate, the court will decide whether to approve your choice of guardian.
Creditors can make claims on any assets left in your will
Making a will doesn’t protect your assets from creditors. During (or after) the probate process, creditors can make a claim against your estate, even if you’ve left those assets to someone else in your will.
Your executor might have to liquidate some of your assets to pay those debts.
One way to protect your assets from creditors is to put them in an “irrevocable trust”.
The assets covered in your will are subject to estate taxes
Your will sets out what should happen to your estate when you die.
Because it concerns your estate, all of those assets are subject to estate taxes.
Federal estate taxes only apply to estates worth more $12,060,000, so most people won’t have to worry about those.
But a number of states impose their own estate taxes.
Estate taxes by state
(Source: AARP)
Bear in mind that some of those states that don’t impose an estate tax will impose an inheritance tax.
Estate taxes are complex, but they can be avoided through the use of some irrevocable trusts. When you put an asset in an irrevocable trust, the trust becomes the asset’s owner, rather than you.
And that means they’re not part of your taxable estate.
Unlike wills, trusts can keep your assets out of probate and avoid estate taxes
Trusts and wills are both useful weapons in the estate planning arsenal, but they do have some key differences.
The main advantage of using a trust rather than a will is that it keeps the assets out of probate and means they’re not subject to estate tax. On the other hand, they can be more complex to set up.
If you don’t have a will, this is called “dying intestate”
If you “die intestate”, the probate court will choose someone to “administer” your estate. This essentially makes them an executor.
The administrator is responsible for gathering all your assets, paying your debts, sorting out estate taxes and getting in touch with your beneficiaries.
Without a will, your estate is distributed based on “intestate succession”, which is basically a set of rules for deciding who gets what when there’s no will.
Intestate succession varies between states.
The rules around making a will vary between states
Each state has its own rules and regulations that govern many aspects of making a will.
For example, each state has different executor fees. Some states accept handwritten (or “holographic”) wills, and some others don’t.
Each state will have its own laws for “dying intestate”, too, and different ways of deciding what to do with assets that aren’t clearly covered in your will.
A will only comes into effect when you die — a “living will” leaves instructions for medical care while you’re still alive
A “last will and testament” only covers legal guardianship of your children and financial assets. It doesn’t come into effect until you die.
If you want to leave instructions for your medical care if you become too ill to make those decisions yourself, you need to create an “advanced medical directive”, which is (slightly confusingly) also known as a “living will”.
You can also use a living will to give someone medical power of attorney, which essentially means they can make medical decisions on your behalf if you’re not able to.
Wills are publicly available (after probate)
When probate is done and dusted, your will becomes publicly available to anyone with the probate court file number (it also usually costs a small fee).
If there are things in your will you’d rather keep private, it might be a good idea to put those assets in a trust. The assets in a trust don’t go through probate, so the details aren’t made public.
Making a will can be more complicated for blended families
If you’re married to someone who has children from a previous relationship, you’re in a “blended family”.
Being in a blended family can make things more complicated when it comes to making a will.
The simplest thing to do is leave everything to your spouse, but that gives you less control over what proportion of your assets go to your own children.
You can always split your will, leaving X amount to your children and the rest to your spouse.
And you can also set up trusts for your children. This leaves specific assets to them, regardless of what’s written in your will.
Ready to make a will? Let’s get started
Wills — exciting stuff, eh?
But even on the off-chance that words like “intestacy” and “beneficiary” don’t make your eyes grow wide with excitement, having a will saves a lot of headaches when it comes to distributing your estate.
And with Snug, getting a will set up is quick and affordable. You can make one online in 30 minutes for $145.
