A will is the legal way to state your preferences of how you would like your estate to be handled after your death. It should be used to ease the process by transferring your property swiftly, while avoiding tax burdens for your loved ones.

A trust is a tool most commonly used to replace or supplement a will. However, it can also be used to help manage your property during life. A trust dictates the distribution of your property by transferring the benefits and duties to different people.

Read on the learn about the specifics and how to set up a will or trust of your own.

Wills

Your will can range from a simple, one-page document to an elaborate, multiple page tome, depending on your estate size and preferences. Wills often describe your estate, the people you choose to receive specific belongings (otherwise known as “devisees”), and any specific instructions you may have regarding the care of any minor children, charitable donations, and the formation of any posthumous trust(s).

Creating a Will

When creating a will, there are certain requirements and restrictions of which you should be aware.

Typed & Signed by Adult of Sound Mind: First and foremost, you must be an adult (over the age of 18) of “sound mind,” meaning you have the capacity to understand the full weight of what you are doing.

Some states may allow you to handwrite your will, but it is advised that you use a typed document.

You must sign your will to make it valid. If you cannot, you must designate someone to sign in the presence of witnesses, and the signature should be notarized.

Validity & Amendments: A will remains valid until it is either entirely revoked or replaced by an updated, valid will. Sometimes, minor changes are made by an amendment (known as a “codicil”) to avoid having to rewrite the entire will.

Disinheritance: Some states have laws prohibiting the disinheritance of your spouse or dependent children. You will not be able to completely disinherit your spouse without their consent, which can be included in a prenuptial agreement.

Most jurisdictions will allow your spouse to have a right of election, meaning your spouse may take a legally determined percentage (sometimes as much as 50%) of your estate if they are not satisfied with your will. Non-dependent children, however, can be disinherited.

If you have such a preference, it should be expressly stated in your will to avoid any confusion and/or possible legal challenges.

Appointing an Executor: When creating a will, you should appoint a personal representative (known as an “executor”) to see to it that any specific wishes you may have stated in your will are performed.

Your executor does not necessarily have to be a relative, but most people usually choose one, or sometimes a close friend. You should state an alternate choice, as well.

The executor you choose needs to be aware of what is expected of them before you appoint them, to ensure they are willing to take on the assigned duties. Your executor will manage all of your assets, collect any debts owed to you at death, sell any property necessary in order to pay taxes or other expenses, and file any necessary documents for your estate.

Minor & Dependent Children: If you have minor or dependent children (and your spouse is no longer living), you can use your will to designate a guardian to care for them. If you do not designate a guardian, the courts can appoint someone who may not be the person you would have chosen.

Once again, most people choose a relative or close friend to be the guardian of their children), and will often name an alternate person, as well. A potential guardian should always know that they have been chosen for this task, and should be made fully aware of what will be required of them.

Choosing a guardian will often affect other aspects of your will, since you may want to detail added financial support for the guardian to assist in raising your children.

Types of Wills

There are many different types of wills. The following list will give you a brief overview of each type:

Simple will — Provides solely for the out and out distribution of your assets for a straightforward estate.

Testamentary trust will — Sets up a trust (or multiple trusts) for a portion of your assets upon your death.

Pourover will — Leaves some assets in a trust that you established before your death.

Holographic will — Has no witnesses and is in your actual handwriting. Only about 20 states will recognize such a will.

Oral will/Nuncupative will — Spoken, as opposed to written or printed. Only a handful of states will allow these.

Joint will — A single document that covers any two people (a husband and wife, partners, etc.). Often times, a joint will only causes more headaches and stress than it is worth, especially for estates larger than $675,000.

Updating Your Will

Many people wonder when they should update their will. The answer is very straightforward: You should update your will whenever a life-changing event occurs.

This can include, but is not limited to, the following:

  • You change your mind about someone inheriting a large portion of your estate
  • You get married, or have a new partner
  • You get a divorce or an annulment,
  • You have a baby
  • You have new stepchildren
  • You acquire or dispose of a major asset, like a house

If you are making changes to your will, you have 2 options:

1. Add a Codicil

You can choose to add an amendment (called a “codicil”) to your existing will. A codicil acts as a post script to your will, either changing preexisting inheritance guides, or adding a new item (like a piece of property or new sums of money) to the will.

Many people consider codicils a bad idea. They can often create havoc with other parts of your will, often contradicting stipulations in the original text. Codicils have to be dated, signed, and witnessed as if it were an entirely new will.

2. Write a New Will

With technology being what it is today, your second option is the most recommended: make a new will.

When making a new will, you should revoke any previous wills with a statement in the beginning like this: “I hereby revoke all previous wills and codicils.”

It is also smart to collect any copies of your previous will and destroy them, so as to avoid needless complications.

Dying Without a Will

If you die with no valid will and made no other arrangements to distribute your estate, your devisees will face a red tape-filled — not to mention expensive — legal process.

Dying without a will results in an estate becoming “intestate.” A probate court must then get involved to divide up your estate using standards that will give your property solely to surviving relatives. First, however, the court will pay all debts left over and any death expenses before they follow legal guidelines.

The rules will depend on whether you were married, had children, and if your spouse and children are still living. If you have no living spouse, children, or grandchildren, your estate will be divided among other living relatives. So, if your estate does become intestate, people you may have had no desire to designate to receive property will be entitled to a portion of your estate.

Also to keep in mind: state intestacy laws will only recognize legal relatives; so any close friends or charities that you would like to leave property to will not be eligible to receive any portion of your estate. If there are no relatives found, your estate will most likely go to state or local government.

Trusts

A trust is a tool most commonly used to replace or supplement a will. However, it can also be used to help manage your property during life.

A trust dictates the distribution of your property by transferring the benefits and duties to different people. There are many reasons people choose to create a trust, making it a popular choice when creating an estate plan.

Creating a Trust

Basic trust creation is a pretty simple affair.

To create your trust, you (referred to as the “trustor,” “grantor,” or “settlor”) designate a person or institution (referred to as the “trustee”) to manage all or certain parts of your property for the benefit of a third party of your choice (referred to as the “beneficiary”). The trustee will usually receive some sort of compensation for the management of your property.

Trusts create what is known as a “fiduciary” relationship between the trustee and the beneficiary. What this means is the trustee is required to always act in the best interests of the beneficiary when it comes to the trust property. If the trustee fails to live up to their duties, they are held legally accountable to the beneficiary for any damages to his or her interests.

You are able to be the trustee yourself, and keep ownership of your property instead of transferring it, but you are still obligated to act in a fiduciary capacity. You are also able to name yourself as one of the beneficiaries of your trust. However, in all trust arrangements, the trust won’t become effective until you transfer your property to the trustee.

Example: You wish to transfer money to an account, where the bank would be named as the trustee, for your child’s living expenses. Your specific instructions are to give your child a certain amount every year for the next 10 years. The bank would be required to manage the money properly, ensuring that the money remains available. Your child would not be able to access the account, until the bank gives him the yearly amount on which you have already decided.

Living Wills

A living will (also known as a healthcare directive or directive to physicians) is a document used to express your preferences regarding medical treatment in the event you become incapacitated or otherwise unable to communicate them yourself.

Living wills most commonly cover:

  • Life support stipulations
  • Tube feeding
  • Resuscitation instructions,
  • Organ donation

Living wills are allowed in every state, but they must occasionally follow certain guidelines. A valid living will legally requires health care providers to adhere to its instructions.