What you need to know about creating a will, or living will

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Most of us do not like to think about the need to create a will, it is often something we defer in our younger years, feeling it is not really necessary. However, if someone dies without a will, things can get very complicated for remaining family. It certainly helps if you have taken the time to declare who should manage your estate on your demise. Death is an inevitability, and the more we can have prepared for it, the easier it is for those we leave behind. Most people concern themselves with preparing a will as they get older, however, a survey conducted by AARP discovered that 2 out of 5 Americans over the age of 45 years did not have a will.

Why is it a good idea to have a will?

Having a legal will in place is a good way to ensure that your property and assets are dispersed according to your wishes. If no will is in place, your property will go to your next surviving heir, and this may not be how you would have chosen to disperse your possessions. Having a will can also take a lot of the tension away from surviving family and remove the opportunity for disagreements about who gets what. It allows you to remain in control of your estate and how it should be managed upon your death.

Do I need to have a will prepared by an attorney or lawyer?

No, you do not need to have your will prepared by a lawyer or attorney. You need to ensure that your will meets the legal requirements of your state, as state laws can vary. An experienced estate-planning lawyer would be able to give you specific and useful advice. The need for qualified legal advice may depend upon the actual value of your estate.

These days there are various DIY will kits and online websites that can facilitate you preparing your own will. If you check with your local state’s Department of Aging they may also be able to guide you to free or minimal cost help with estate planning and will writing.

It is also a good idea as you prepare a will to put other advance-planning strategies into place. Creating a list of all your personal documents and contacts can be a great help for surviving family in sorting your affairs out. Setting up a financial or health care power of attorney can ensure your wishes and rights are protected if you become incapable of making decisions in your final years.

It is important to ensure your will has been properly witnessed to ensure it is valid according to the laws of the state you are in.

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What should be outlined in a will?

A will is simply a document that outlines how your estate should be managed after you die. Your estate includes everything you own, be it large items such as a home, or small sentimental possessions. You name an ‘executor’ of your will and that is the person in whom you put the trust to execute the wishes you have outlined in your will. In other words, he or she will distribute your estate as you have requested. You can even itemize certain possessions you have and who should get them.

If you have young children or dependents, you can also specify who should become the legal guardian of your children. This can be especially important these days with so many separated families.

What happens if I die and haven’t made a will?

If you die and you haven’t made a will, then you become what is known as ‘intestate’. This means that your estate is settled depending on the laws of the state you live in and how they specify who has the rights to inherit. As there is no executor named, the state will appoint an administrator to serve in this role. Probate is the legal system of transferring the property of a deceased person to their heirs. The rules for federal estate tax have been changing in recent years and you should check the rules for your state. And even of the states that had inheritance tax, many states have been phasing it out.

What is thedifference between a will and a living will?

A will is a declaration of what is to happen with your estate when you die. A living will is a declaration of what kind of medical care you wish to receive if you become incapacitated and cannot express your wishes. It can prevent estranged family, or medical practioners, taking control over your medical care. It is sometimes referred to as an “advance directive”. It bears no relation to what is outlined in your conventional will.

These days’ people are more aware of the value of having a living will in order to make sure that they are not given extensive medical care to be resuscitated. Or to help govern senior care years when they may not want their life to be artificially extended. Having a living will is a choice many now make to ensure that they are in control of their own end-of-life care and to pursue their own dignity in dying.

Can I have a joint will with my spouse?

This is generally not recommended, and in fact, some states do not even legally recognize joint wills. It is highly unlikely that both of you will die at the same time, and many assets will not be jointly held. For this reason, it makes practical sense to have separate wills. It can be even more important these days with the high divorce and re-marrying rates. Probate laws more often sway towards the current spouse, so if you have possessions or property from a former marriage that you particularly wish to be left to children from that marriage, it is better to have that outlined in your will.

For more tips visit our section on Putting Your Affairs in Order.

Written by

Sara is the Editor in Chief for US Funerals Online and has been researching and writing about the death care industry in the US for the last 15 years.