A will is literally the last thing anyone wants to do, but if you’re smart you won’t wait until then. Unfortunately, most people do, if they do a will at all. More than half of American adults haven’t bothered to draft a will. This procrastination is in large part because of morbid nature of the topic and because of its perceived complexity and misunderstandings about who can have a will. We’ll make it easier for you.

Wills 101:

A will explains how you would like your assets to be distributed after your death. You can use a will to leave money or possessions to loved ones (yes, shoes and purses most certainly count as possessions), name a legal guardian for a minor or create a trust for charitable cause. There is no law stating that you must have a will, however; if you die without one a judge in probate court will decide what happens to your estate. The absence of a will may cause financial problems for those left behind and add feelings of abandonment to their grief.

Drafting a will is not necessarily expensive nor does it always require a lawyer—in many cases you can do it yourself. But, no matter how you choose to create a will, it is better to draft one sooner rather than later. Once drafted, a will should be reviewed periodically and updated to reflect your current financial and familial situation. Imagine this peach of a situation: Your husband cheats on and then divorces you for his mistress, you walk out of the courtroom only to get hit by the proverbial bus, and worst of all this takes place all before you thought to change the will. Great news for the happy couple! While you’re in the great hereafter, they’re enjoying your hard earned cash and she’s wearing your aforementioned accessories.

A current will is the best way to protect your assets and provide for your (current) loved ones once you are no longer around. Who needs one? Anyone who wants to have control over what happens to their possessions after they are no longer around.  That means you!

What’s in a Will?

While the specifics of drafting a will vary by state, the basics remain the same. The testator, the person making the will, must be over the age of 18 and must be identified by name in the document. He or she must be of “sound mind” and free of “undue influence;” in other words, a note written at gunpoint from a padded cell probably won’t stand up in court. The will must clearly name the beneficiaries and be witnessed by two adults who are not named as beneficiaries. For more detailed legal information on drafting a will consult a lawyer or check with your state’s government agencies.

Note: Some states recognize living wills, health-care proxies or health-care directives. Unlike last wills and testaments, which control what happens after you pass away, these documents tell your family and doctors what kind of care you would like to receive if you facing a long-term or fatal illness and can no longer make medical decisions for yourself. If you would like to have a say in this part of your life, you should look into drafting one of these documents.

Do You Need a Lawyer?

You can create a will without the assistance of a lawyer.  DIY wills software such as Quicken WillMaker and books and forms from publishers like Nolo.com, can help you draft a basic will that meets the legal requirements of your state. However, a lawyer’s assistance is advised if your needs are more complicated because you:

• Have minors in your care
• Have a lot of property or other assets
• Want to divide your assets among multiple beneficiaries
• Want to create trusts for charities or heirs
• Are concerned that your will may be challenged
• Plan to leave family or loved ones out of your will
• Have debt

If you have any doubts, get the right legal assistance- you don’t want to leave anything to chance. In addition to ensuring that your will is legal, a lawyer will raise issues that you may overlook or avoid because of the emotions involved in dealing with your mortality.

Who Will Carry out Your Wishes?

A will should name an executor. An executor’s job is to make sure that your wishes, as outlined in your will, are respected and carried out. While many people entrust the execution of their will to a lawyer or financial advisor, any trusted knowledgeable individual can serve as an executor. Executing a will is great responsibility to be carried out by someone who can keep a level head in a time of uncertainty and sorrow. Anyone you choose should be aware of the amount and difficulty of the financial and legal work involved; executing a will involves a real mountain of paperwork. 

The executor’s duties include but are not limited to:

For non- lawyer executors assistance is available; a court clerk can answer basic questions and provide and explain the necessary paperwork.  If you do not name an executor, a probate judge will appoint one for your estate. Of course this is not a free service, your estate will be charged.

What About Minors?

If you have minor children in your care, your will can be used to name a legal guardian for them. Once again, if you fail to name a guardian in your will a probate judge will do so for you. A will is also an opportunity to plan for your children’s financial future . You can create and outline the terms of a trust for minors so that their financial outlook will be secure.

Can a Will Expire?

Once you have made a will, don’t just put it away and forget about it. (See example, divorce nightmare, above.) Periodically review your will to make sure it still expresses your wishes. For example, if you buy a new home and put together a great stock portfolio while you are single and decide you want to leave it all to Amanda’s Urban Parakeet Hospice, you might change your mind once you are married with children. The most current will is the one that the courts will go by, so make sure that your latest decree reflects your plans for you assets today and not for yesterday, last year or the last millennium. If you don’t want to redraft your entire will each time you want to make a change, you can create a codicil. Codicils can make small changes and amendments to the will while preserving the original document. The addition of a codicil also needs to be witnessed.

Contesting a Will

Unfortunately, there may be those who disagree with your intentions and try to contest your will. If your will is contested it may mean that the intended beneficiaries may not receive their due in a timely fashion or at all. A clearly written will is the best defense against challenges. Your lawyer can help you make it absolutely clear to the courts and anyone else who the beneficiaries of your will should be and—in extreme cases—who they should not be.  If there is a person you feel may contest your will you may consider mentioning that they have been deliberately left out of it. Of course you do not have to state the reason that some one has been written out of your will, unless you want to exercise your mean streak. Your lawyer can help you in creating a will that is virtually contest-free.

What Happens if You Die Without a Will?

If you ignore this article, do not make a will and pass away you will join the ranks of those who “die intestate.” Is that really how you want to go? Dying intestate puts your asset in limbo until decisions about your family, your estate and any thing else you leave behind are made in probate court. In this situation your wishes cannot be respected because they are not known. Having the state administer your estate isn’t free; Uncle Sam takes a percentage to carry out the work leaving even less for those who may get what is left behind.