Following are some discussion guides and legal tips you and your loved one can use to help prepare a will. Before starting the exercises, you might want to review the information found in the
estate planning section. If your loved one plans to prepare a
living trust, rather than a will, for his estate, we suggest consulting with an estate or elder law attorney, as trust documents can be complex.
Start with the Personal Legacy
If you are helping a loved one prepare a will, start with finding out what’s important to her about her legacy and estate. Knowing these core values will help you clarify the specific will provisions, like choosing what to give to whom, and selecting an executor.
The following exercise might also be helpful. Ask your loved one to rate each statement on a scale of 1 to 5, with 1 being Not Important and 5 being Very Important. Remember, this exercise can also help caregivers or anyone who is preparing a will. (Note: Just skip the statements that don’t apply to your situation.)
- I want to make sure my spouse or partner is provided for.
- I want to make sure my children are provided for.
- I want to make sure my minor children have someone to take care of them.
- I want non-immediate family members to get a portion of my estate (e.g., grandkids, siblings—these can be listed on CareCommunity's Writing a Will, Property, Assets, and Beneficiaries form)
- I want to give my children the largest portion of my estate. (Note: A surviving spouse may have to agree with this, possibly in writing.)
- I want to make sure my friends have something to remember me by. (These people can be listed on the Writing a Will form.)
- I want to provide for my loved ones, but leave some portion of my estate to charity. (These beneficiaries can be listed on the Writing a Will form.)
- I want to leave all my estate to charity, or other organizations. (These can be listed on the Writing a Will form.)
- I want to use my estate to pay for my funeral expenses.
- I want to make sure all my debts are paid.
- I want the estate to do whatever it can to avoid paying taxes.
- I want my executor to be someone my family will defer to and respect.
- The executor must be someone both my family and I can trust.
- I want my executor to be a family member.
- I don’t want my executor to be someone in the family.
- I don’t want my executor to be a beneficiary in the will.
- I want my executor to get help from a lawyer.
- I don’t want my family to fight over my possessions.
- I want to let everyone know what the will says before I go.
- I want to hear what loved ones want before I make up the will (e.g., specific items that a relative would like to have).
- I want to hire a lawyer to help me draw up my will.
- I want to leave a legacy in the community. (Follow-up question: What kind of legacy?)
- I want my beneficiaries to use their inheritance to accomplish certain things. (Follow-up question: What things?)
Distributing Assets
The following types of assets cannot be left to beneficiaries in a will.
- Property held jointly with someone else. At death, such property will automatically belong to the surviving co-owner. An example is a house co-owned by a spouse.
- Property that has been transferred to a living trust.
- Proceeds of a life insurance policy for which a beneficiary is named. To change the beneficiary, fill out the proper insurance form. A will cannot override what’s listed in the policy.
- Money in a pension plan, individual retirement account (IRA), 401(k) plan, or other retirement lan. The beneficiaries for these are named on forms provided by the account administrator.
- Stocks or bonds held in beneficiary (transfer-on-death) form. To change the beneficiary, contact the brokerage company.
- Money in a payable-on-death bank account. To change the beneficiary, fill out the proper form at the bank.
Other Important Considerations
Here are a few things to reflect on when planning how to distribute assets.
- If there are surviving minor children.
- Who will care for the children? A will can name a guardian to take responsibility for minor children.
Name the guardian ___________________________.
- Do you want to leave assets directly to the children? For example, some wills mandate that children receive inheritances at an older age, such as 25 or 30 years old. If you want to delay when a child receives an inheritance, you’ll need to name an adult to manage the money for the children.
Name the adult___________________________ (This can be the same person as the guardian.) __________________________
- Do you want to specify instructions for managing and dispensing the assets?
- Other concerns _________________________.
- All states have laws preventing disinheritance of spouses and surviving minor children (giving them less than a certain percentage of the estate). If someone intends to leave less than the legal minimum (for example, less to a spouse in order to leave more to surviving children), the beneficiary can challenge the will in court, unless a specific legal document has been prepared and signed by everyone involved.
- Assets can only be distributed to beneficiaries after all liabilities (debts) and taxes on the estate are paid. To help the executor locate and settle all claims on the estate, it’s helpful to provide a list of liabilities and contact information along with documentation of assets.
What to Include in the Will
Be prepared to state the following details in a will.
- Name of the executor.
- List of allowed assets and property to be distributed, and to whom.
- Instructions about surviving minor children, including appointment of a guardian and how the children’s inheritance should be managed.
- Funeral arrangements and wishes, if any.
- Organ donation and autopsy wishes, if any.
When you’re ready, use this
Writing a Will form to list all the property to be left in a will, and the designated beneficiaries.
Note that the worksheet is only intended to help someone organize his wishes; it is NOT a will document.
Personal Wishes–A Letter of Instruction
A letter of instruction is a statement of wishes beyond those that appear in the will. These wishes are often of a more personal nature and are stated as preferences rather than legally binding orders.
To help your loved one compose a letter of instruction, ask him the following questions.
- What should be done with any possessions not listed in the will? (Usually, these are items of sentimental rather than monetary value.)
- What should be done with personal and intimate effects, like letters and diaries?
- What is your preference for the care of your pets?
- Where are important documents located?
- What are the names and contact information for important advisers, such as lawyers, accountants, and doctors?
- Do you have any suggestions to loved ones about how to use or maximize their inheritances?
- Do you have any other personal statements or messages to give to loved ones?
Choosing an Executor
The executor of a will is the person in charge of organizing the estate after death. This process is called probate, and may be court-supervised. The executor makes sure all claims on the estate are paid, including debts and estate taxes, and then distributes the remaining assets to the beneficiaries named in the will.
Following are some things to consider when choosing an executor. Your loved one may wish to answer these questions for several potential candidates and compare their “scores.” Also, it’s best to choose at least one backup in case the first choice is unable to serve.
- Would this person be readily available to execute the will (i.e., close by or willing to travel)?
- Can this person handle the responsibility?
- Will this person see the process through to the end and attend to all the details?
- Can this person be trusted by both me and the family?
- Will the family defer to this person’s authority when I’m gone?
- Is this person able to handle conflicting opinions between family members and other potential beneficiaries?
- Does this person have the experience or knowledge needed to understand financial matters and the legalities of probate?
- Would this person be able to act on my wishes and separate his or her own feelings from mine?
- Would this person be willing to talk with me now about estate issues and listen to my wishes?
- Other issues that are important to me about choosing an executor:
Choosing a Financial Representative Another important part of estate planning is choosing someone to make financial decisions for your loved one if he should become incapacitated. This representative (also called a financial agent) is named in a
financial power of attorney document. The person in this role should have qualifications similar to those of the executor of the will, and you can use the executor worksheet to assess them.
Your loved one will also need to decide what authority to give his financial agent. Below are examples of financial powers that could be granted to the agent.
- Bank account transactions (writing checks, making deposits, opening and closing accounts, etc.).
- Buying and selling stocks and bonds.
- Property-related transactions (buying, selling, transferring, collecting rents).
- Access to safe deposit boxes.
- Filing income tax returns.
- Access to financial information.
- Power to sign financial documents.
If your loved one wishes to limit his agent’s powers, or to specifically list allowed powers, you may wish to consult with an estate attorney for the proper legal language.
It’s Time to Write the Will
Once you and your loved one have gathered all the information, you’re ready to write up the will document. Following are some tips for writing the will.
- If the estate is substantial or complicated, or if you’re concerned about paying estate taxes, we suggest consulting with an estate planning or elder law attorney. (Note: Estates can be complicated by certain family situations, such as same-sex or unmarried partners, children from prior marriages, or surviving minor children.)
- Many books, software programs, and downloadable forms on the
Internet can help you prepare your own will. Make sure the form or instructions you use are accurate and legal.
- Use resources endorsed by reputable organizations, like AARP (http://www.aarp.org/) and the American Bar Association (http://www.abanet.org/).
- State laws for wills vary widely and change often. Make sure the form takes your state laws into account and has recently updated information. For example, a good will-making program will ask for your state at the very beginning of the process.
- Make sure the book or program includes informational materials along with the forms to fill out. The help materials should cover all the issues you care about, let you know what decisions you’re making, and answer all your questions.
- Once you’re satisfied with the form or program you’re using, follow their signing instructions exactly. Most states require at least one, and sometimes two, witness signatures for a will to be legal.
- File the will in an easily accessible place and let the executor know where to find it.
- Letting family members know what to expect from the will in advance can help prevent arguments in the future.