Wills in Estate Planning

What is the role of wills in estate planning and why do you need a will?

Almost everyone should have a will. I say "almost" because if you don't have children and all your assets are nonprobate assets -- then you probably don't need a will. But, few people are in that situation, so almost everyone needs a will.

And, honestly, even if it turns out you didn't, it can't hurt and can only help your family members to understand what you wanted to have happen after you pass away. A will expresses your wishes regarding guardianship of children; distribution of assets; determining who will be executor of your estate; it can even address things like where you wish to be buried and whether you want to be cremated.

But, if you have children, you will definitely need a will to name the legal guardian of your minor children and you do that in your will. Your will should include either trust or UTMA or UGMA account provisions for your minor children so that the assets go to that trust or account (guardian is usually the trustee of the trust or custodian of the UTMA or UGMA account) -- until the children reach an age you feel they can be trusted to manage the assets.

Also, if you have probate assets you will need a will to ensure they get distributed to the person(s) you want.

Without a will, the law of the state you are in would determine who became guardian of your minor children and who received your probate assets. The matter would have to be determined in probate court and could result in significant uncertainty and expense for your loved ones after you pass away.

Some people think if they have a living trust they won't need a will. Not true, you still would need a will to name a guardian of your children and you also would want to a will to act as a "pourover will" to handle any assets that your living trust, for whatever reason, might not end up in your living trust. For instance, if you forget to fund your living trust with a particular asset, the asset would "pour-over" into your will and be distributed in accordance with your will.

Of course a will is pretty basic. If you have lots of assets or other unusual circumstances (like a disabled child) then you may also need a living trust or special needs trust.

It is possible to write your own will, but it's a bad idea. If you don't follow all the formalities, especially regarding witnessing and notary -- the will can more easily be questioned and attacked. Plus, if you try to do it yourself, you'll probably overlook some things you should think about. So, we recommend you see an estate planning attorney.

A second option would be to use on on-line will preparation program like Legal Zoom or Rocket Lawyer.

Don't forget to update your will after major life changes like marriage, divorce, birth of child, or moving to a new state. When you get a new will, you should destroy the old otherwise someone might find your old one and assume it is the most current.

While I'm at it, the other key estate planning documents that everyone needs are a:

  • Durable Power of Attorney -- allows someone to act in your behalf (pay bills, manage financial affairs, etc) if you become disabled. Whoever you give this power to will need a copy of it obviously.
  • Health Care Power of Attorney (HCPOA) -- should be durable and allow someone to make health care decisions for you if you are unable to do so.
  • Medical Directive or "Living Will" -- more limited than an HCPOA because the holder can't make decisions for you, but it provides guidance regarding the medical care (i.e. life-sustaining procedures) you wish to receive if you become incapacitated or terminally ill. Give a signed copy of this to your family.

See Do i need a will.

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What are UGMA or UTMA Accounts? Not rated yet
UGMA (Uniform Gifts to Minors Act) and UTMA (Uniform Transfers to Minors Act) Nearly every state has has an UGMA and/or UTMA law which provides a relatively …

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