While it’s generally advisable to seek the help of an attorney when drafting a will, those with small, simple estates and standard bequests are probably safe writing a will on their own. There are several reputable services available online that offer software and fill-in-the-blank formatted documents for a fee, but if you’re savvy enough, you can draft one on your own with a computer (just don’t try to write one by hand!). If you’d like to write your own will, follow these 8 steps to do it right.
Even if you follow all of our steps, it’s still highly recommended that you meet with an estate planning attorney to go over all your options.
1. Write the Introduction
Start by clearly labeling the document your Last Will and Testament. If you have any previous wills or codicils to a will, indicate that this document revokes those. State your full name, and include identifying information such as your address, social security number, and birth date. Confirm that you possess the ability to create a valid will, a characteristic known as testamentary capacity. Testamentary capacity requires you are over the age of 18, of sound mind, and you are not under duress.
2. Nominate an Executor
The executor will serve as your estate’s personal representative when you die. They will receive Letters Testamentary from a probate judge authorizing them to legally act on your behalf, taking control of assets, settling liabilities, and distributing assets to your beneficiaries. Most married couples name their spouse as the executor. It’s recommended you also nominate a backup executor, in case your primary executor passes away before you. Be sure to discuss this ahead of time with your preferred candidates, as they are not bound to fill the role and can decline when the time comes. If that happens, the court will have to appoint a third-party administrator, who can be counted on for fair, unbiased administration, but may not handle your affairs the way you’d prefer.
3. Name Your Beneficiaries
Start by making a list of the people who might consider themselves rightful heirs—your spouse, children, parents, siblings, extended family, and business partners. Next, decide who on this list your like to gift assets to. Depending on state laws you may be obligated to transfer a certain percentage of assets to your spouse, but outside of that you aren’t under any obligation to include would-be heirs. Once you have the list of intended beneficiaries, include identifying information to avoid ambiguity. At a minimum, include their full legal name, date of birth, and address.
4. Name a Guardian for Minor Children and Special-Needs Dependents
Unfortunately, this is a common oversight for young parents. It’s understandable to be optimistic that you will live a long, healthy live, but accidents and illnesses can strike anyone at any age. If you don’t name a guardian for your dependents, you’ll leave your loved ones in the hands of the court. Usually the court will establish a guardianship or conservatorships and try to place the dependents with next-of-kin, but if nobody is willing to take them, they could wind up in foster care. To be prepared, select a guardian and a backup guardian in your will. Speak with these people ahead of time so they understand the obligation and have the opportunity to accept or decline your request.
5. Instruct the Executor to Settle Your Outstanding Liabilities
This is a formality since they’ll have to do this with or without your permission, but it’s still a good habit to include it. It’s even more helpful if you gather your bills and statements, and compile a list of your creditors. Your will is going to wind up becoming publicly accessible through probate so you should not list your creditors or debts in your will, but you could include them in a separate Letter of Instruction to the executor. Alternatively, you could give the statements to a family member for their reference when the time comes.
6. Assess and Divide Your Property
Take inventory of your assets. The value of these assets may change over time, so don’t be too concerned with values at this point; estimates and approximations will do. Focus on account numbers, account registration details, death benefits, deeds to property, titles of ownership, etc. If you have valuable personal items such as jewelry, collectibles, and art, be sure to include those, too.
Next, indicate if any assets should go to specific beneficiaries (rather than being split between beneficiaries, which we’ll discuss next). For example, your spouse Sally Doe is to receive the family home, John Doe is to receive the 1966 Ford Mustang, and Jane Doe is to receive your coin collection.
Finally, include instructions on how your executor should distribute your residual estate—the value that is left over after your liabilities have been paid, and specific assets are bequeathed. Some states mandate a certain percentage must go to your spouse, so check with a local attorney for any minimum allocations that you should be aware of. Otherwise, you’re free to divvy up the remaining assets how you please. Most married couples leave the entire estate to their surviving spouse, but it’s common to see children and other next-of-kin included as beneficiaries. Keep in mind, however, that gifting assets to minor children would require a court-supervised conservatorship or guardianship. In those situations, it’s often easier to create a trust for your children’s benefit.
7. Sign the Will
When your will is fully drafted, print and sign a copy (it needs to be typed and printed, not handwritten). Many states require that your signature be notarized, meaning it would need to be signed in the presence of a notary public and stamped with the notary’s seal. If you have an attorney, they should have a notary public in their office who you can use. Otherwise, many banks offer the services of a notary public.
8. Have the Will Witnessed
You’ll need 2 – 3 witnesses to sign your will (depending on state requirements). Most states require the witnesses be disinterested—meaning they are not beneficiaries in the will or otherwise interested parties to your estate—but the state of Arizona allows interested parties to serve as witnesses without invalidating the will or its provisions. Some states also require the witness signatures be notarized.
For long-term peace of mind, contact us to set up a consultation today. We look forward to helping with your will and other estate planning needs.
Call Arizona Estate Attorney Dave Weed at (480)467-4325 to discuss your case today.
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