Your "Last Will & Testament:" Why You Need One, What You Need In It, and the Smart Ste

Published: 19th January 2006
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Preparing a "Last Will and Testament" - commonly known simply as a will -- is not something that anyone enjoys thinking about or doing. But it is something that almost every adult -- especially those with children -- should think about and do.

The majority of Americans (57 percent) do not have a will, according to a survey by the legal Web site FindLaw.com. This leaves them with no say over how their children are raised (should their children still be under 18) or how their assets are used after they die.

Who Needs a Will?

"If you don't want the state to write your will, then you need to create a will," says Connecticut attorney James Kosakow, who specializes in estate planning. He continues:

"If you die without a will, the state will say who gets what from your estate, who your executors -- those responsible for administering your estate -- will be, and who will take care of your minor children. You won't have the opportunity to reduce or avoid estate taxes, which could potentially be significant; establish trusts for your children or other beneficiaries; donate to charity or bequeath gifts to specific people. The only way you can have any say in these matters is through an estate plan, which generally includes a will."

What Should be in Your Will?

A will is a legal document that allows you to specify who will get your assets when you die. You should name:

Beneficiaries:
These could be family members, friends or charities. Your will should state which of your beneficiaries receive which of your assets. You can break down your property individually (such as a certain piece of jewelry to your child) or leave a sum of money. You should also designate someone to receive the "residue" of your estate, which encompasses any remaining assets.

A guardian for your children:
If your children are under 18 years of age, you should name who you wish to be responsible for their care if both you and your spouse die. You can also designate someone to be responsible for your children's financial assets. The two do not have to be the same person.

"Many people with new babies name their own parents as a legal guardian in their wills," said Mike Palermo, an attorney and certified financial planner.

However, you should keep in mind that children typically outlive their grandparents. Some things to consider when choosing a guardian for your children include:


  • Is the person physically able to care for your kids?


  • Does the person have the time necessary?


  • If you cannot provide enough assets for the children, will the potential guardian be able to?


  • Does the person live in an environment that will be supportive of your children?


An executor:
This is the person (or institution) who will oversee the distribution of your assets according to your will. Most people choose their spouse, an adult child, friend, relative or attorney. If no executor is named, one will be appointed by a probate judge. The executor's responsibilities include:


  • Collecting and managing your assets


  • Paying your debts and taxes


  • Distributing your assets in accordance with your will


  • Notifying Social Security and other organizations of the death


  • Canceling credit cards, magazine subscriptions, etc.


Other items you may want to include in your will include:


  • A description of your assets


  • Alternate beneficiaries and/or guardians, in case of the death of a beneficiary or guardian


  • Specific gifts, such as a house


  • Debts owed to you that you'd like cancelled


How is a "Living Will" Different than the Will Discussed Here?

A living will - also known as an Advance Directive -- is a different (and very necessary) legal document written to ensure that your personal wishes about medical care, resuscitation, life support, and medication are carried out if you are unable to communicate those wishes. It is also created in advance and important for everyone to have in place, especially those with terminal illness.

Search the Web by combining the term "Living Will" with the name of your state (or country if outside U.S.) for guides to preparing your living will.

How to Have Your "Last Will & Testament" Prepared

"Drafting a will can be fairly simple, depending on the amount of assets you have and how you plan to divide your belongings among your heirs," said Mike Janko, executive director of the National Association of Financial and Estate Planning (NAFEP).

Often, for example, each spouse will write a separate will and leave all of his or her assets to the other. Wills can either be handwritten (depending on the state) or drafted by a lawyer.

If you decide to write your own will (you should check with your individual state for regulations), it must be:


  • Written entirely in your own handwriting


  • Signed and dated


  • Signed by two witnesses (optional)


You may also want to have a lawyer check it over to be sure that it conforms to your state's laws. Alternatively, some states offer statutory wills, which are essentially "fill-in-the-blank" forms. These work best for people with relatively small estates.

If you'd rather not write your own, you can opt to have a lawyer draft your will for you. Depending on how large your estate is, and how complex your wishes are, this will cost around $200 to $1,000.

A lawyer can be helpful in developing an estate plan that can reduce your taxes and be more economical for your beneficiaries in the long run. The American Bar Association can help you find an attorney who specializes in probate and estate planning.

The beginning of the year is the perfect time to commit to creating your will, or updating your will if you haven't done so in many years.

"You should revisit your will anytime there are major life changes or every five years -- whichever comes first," says Janko.



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