Do you already have a will? If not, should you go to the trouble of writing one? As explained by the American Bar Association’s Division of Public Education and the Maine State Bar Association, a will is a document that allows you to direct the distribution of your assets—your money, real estate, and personal property—after your death. Or stated another way, a will lets you control what happens to your property. If you have minor children, a will enables you to designate who will care for them after your death. Through a will you can nominate a legal guardian for your children and name an executor to handle the distribution of your estate to your designated beneficiaries. Anyone age 18 or older who is of sound mind may make a will.

So what happens if you die without a will? Since your property must still be distributed, the probate court in your area will appoint someone as the administrator of your estate to distribute the property according to the intestate laws of the state. The costs associated with this are usually more expensive than having an executor named by you in advance and must be paid out of your estate before any property is distributed.

Generally, a will directs the distribution of anything that you own individually, and is specified in the will. When you legally own something with someone else—such as a house, or a savings account that is under both your name and that of your spouse under tenants in common—the property generally remains the property of the other person when you die. On the other hand, living trusts and life insurance policies are governed by their own terms, and will go to the beneficiaries named as part of those documents, and not included in a will.

Getting Ready to Write Your Will

There are three essential steps to writing a will:

• First, list your assets. These will be both the things you personally own that have monetary value, like a house or car or antiques; and things that may be of little monetary value, but are important to you or the people or institution to whom you want to give them, such as mementos, family heirlooms, or personal treasures.
• Next, list the people and institutions to whom you want to leave your assets. Use their full legal names, and note their relationships to you—son, niece, friend, caretaker, teacher, school, etc.
• Finally, name a Personal Representative. Someone will need to take legal responsibility for attending to your affairs when you die, including making sure that your will and estate are handled according to law. This person is called the Personal Representative, and can be a family member, a friend, or an attorney. You want to make sure that the person you name will have the time and ability to do what is required. It is also recommended that a Successor Personal Representative be named in the event that your named Personal Representative is unable to serve. An attorney can explain the duties of a personal representative, and help you consider who would be best.

Making Your Will Legally Valid

After you’ve drawn up your will, you must take the formal legal step of executing the will. This requires having at least two witnesses who have no potential conflict of interest. As a general rule, the witnesses watch you sign, and each witness then signs in the presence of the other. If your will is executed in a lawyer’s office, two other attorneys or support staff might serve as witnesses.

A valid will also requires that:

• you are of legal age, 18 in most states;
• you are mentally competent, i.e., that you know you are executing your will and know the general nature and extent of your property and your descendants or other relatives who would be expected to share in your estate;
• the will must have a substantive provision that disposes of your property and must indicate your intent to make the document your final word on what happens to your property;
• with rare exceptions, such as imminent death, the will must be written;
• you must sign the will unless illness, accident, or illiteracy prevents it, in which case you can designate someone to sign for you in your presence;
• your signature must be witnessed by at least two adults who understand that they are witnessing a will and are competent to testify in court.

If your will doesn’t meet all of these conditions, it might be disallowed by a court, and your estate might be distributed according to state law instead.

Writing a Will without the Help of a Lawyer

Of course it’s legal to write a will without the services of an attorney, but there are three reasons why it makes sense to seriously consider using one:

• 1. To make sure the court accepts your will as the legal document in charge of your estate, a will must be signed in a particular way, with witnesses, and under oath. Other types of wills (such as holographic, or handwritten) may be accepted by the court, but even these are subject to certain requirements that can be explained by an attorney.
• 2. If you have minor children, or need to provide for an incapacitated adult, such as an adult child with special needs, or an ailing spouse, an attorney can help you set up arrangements for guardianship and/or special trusts to help care for them after you are gone. These may include legal arrangements beyond the will itself, as well as appropriate language within the will.
• 3. Inheriting money or property from you may create unintended legal or financial problems for your heirs. An attorney can anticipate these problems, and can often find better ways to help you accomplish what you intend.

Making Changes to Your Will

• Is it permissible for you to make changes to your will? Yes, not only may you change your will as many times, and at any time, as you like, you should plan on it. Your will should be reviewed periodically to keep up with changes in your assets, your wishes, and the law. The will you made when you had your first job and one child will not be sufficient later, when you have several children, more property, and live in a different state under different laws—or the same state, and different laws. Similarly, as your children become self-sufficient, you may want to distribute your assets according to different priorities. Wills can be rewritten entirely, or changed by additional notes, or “codicils,” depending upon the complexity of the changes.

What Is a Video Will?

• More and more people are preparing a video in which they read the will and explain why certain gifts were made and others not made. The video recording might also show the execution of the will. Should a disgruntled relative decide to challenge the will, the video can provide compelling proof that the person making the will was mentally competent and observed the formalities of execution.
• Keep in mind that videos do not last forever and are subject to damage. You should consult a lawyer before making such a video to find out about your state’s laws on video wills. Generally, such a video would supplement, not substitute, a properly prepared written will.

Rules To Remember When Writing A Will

1. In most states, you must be 18 years of age or older.

2. A will must be written in sound judgment and mental capacity to be valid.

3. The document must clearly state that it is your will.

4. An executor of your will, must be named.

5. It is not necessary to notarize or record your will but it is a good idea. To be valid, you must sign a will in the presence of at least two witnesses.