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Personal and Business Banking


StreetWise Consumer Education Program

  • Summary
  • Article

Overview of Wills

  • What is a will?
  • What makes it legal?
  • What should and should not be in a will?
  • Does a lawyer need to draw up a will?
  • Updating your will
  • Choosing an executor
  • Choosing a personal guardian
  • Choosing a financial guardian

What is a will?

A will is a legal document in which you specify what should be done with your property and assets after you die. If you die without making a will-called "intestate" — then state law will determine what happens to your property. For this reason, experts recommend that you have a will even if you have almost nothing.

To make a will you must be 18 years of age or older. You must also be of "sound mind." This basically means that you must know what a will is and that you are making one, know what you own, know the identities of your family and close friends, and be able to decide how to distribute your property. Some states may have additional requirements.

A will must be typewritten or printed from a computer. Handwritten wills are only valid in a few states and even then should be a last resort.

What makes a will legal?

To make a will legal it must fulfill these requirements:

  • It must state that it is your will.
  • You must date and sign the will in the presence of witnesses.
  • The will must be signed by at least 2 witnesses, 3 in Vermont.

    In most states, the witnesses must not inherit anything under the will.

A will does not have to be notarized. In most states, you and your witnesses should sign an affidavit before a notary public. This makes the will "self-proving," so that the witnesses won't have to go to court to prove the validity of the will.

A will does not have to be filed or recorded with any government agency. It may be filed in a few states should the maker so wish.

What should be in a will?

A will usually has the following information:

  • Your name and place of residence.
  • Names of beneficiaries — spouse, children, charities, friends, etc.
  • Alternate beneficiaries in case a beneficiary dies before you do.
  • Name of the executor to manage the estate.
  • A statement revoking any prior wills.

Any of the following information can also be included in a will, if you desire:

  • Specific gifts
  • Establishment of a trust
  • Name of the guardian(s) of minor children
  • Alternate guardian(s)
  • Cancellation of debts owed to you

What shouldn't be in a will?

Experts advise that your will is not the appropriate place to handle the following:

  • A description of your assets.
  • Property that you hold with someone else in joint tenancy.

    At your death your share of the property automatically belongs to the surviving co-owner.

  • Property that has been transferred to a living trust.
  • Proceeds of a life insurance policy that has a beneficiary.
  • Money in a pension plan, IRA, 401(k) plan or other retirement plan.

    The beneficiaries for these are named on forms provided by the plan administrator.

  • Stocks or bonds held in transfer-on-death forms.
  • Money in a payable-on-death bank account.
  • Funeral instructions.
  • Reducing estate taxes.
  • Avoiding probate.
  • Putting conditions on gifts.
  • Leaving money for an illegal purpose.
  • Arranging to care for a beneficiary with special needs.
  • Leaving money to pets.

For the appropriateness of specific bequests and instructions you wish in your will, consult your legal advisor.

Does a lawyer have to draw up a will?

No. A lawyer doesn't have to draw up a will for it to be legal. With good self-help materials — books and software are available — most people can draw up their own will. However, we do not recommend it. Why?

First, a lawyer experienced in creating wills knows your particular state's laws and is trained in putting your wishes in the clearest and most appropriate form. In addition, in many families, the death of a loved one brings out the worst side of many people. Too often greed and jealousy rear their ugly heads and the estate need not be large or complex for this to happen. By using a lawyer, you can be more certain your final wishes will be carried out to the letter and will stand up to legal challenges by disgruntled relatives.

If you shop around or belong to a legal plan where you work, you can get a sound will at a reasonable price.

Updating your will

Your will can be updated in two ways.

  1. The first is to add a "codicil."

    A codicil can add, modify, delete, alter or revoke existing provisions in a will. A codicil must be signed before witnesses just like a will.

  2. The second way is to write a new will.

    With the use of computers today, it is probably just as easy to write a new will than to make a codicil. Making a new will can also reduce confusion that can be caused by codicils. If you make a new will, it should include a clause that cancels all previous wills.

Choosing an executor

Your will must name an executor (or a personal representative in some states). The executor is responsible for settling your financial affairs after your death. You can choose anyone who is age 18 or older (except convicted felons) to be your executor. Most people choose their spouse, an adult child, or a close friend. Your executor should be willing to do the job. You should also name an alternate executor to cover the possibility that the person named as the executor can't or doesn't want to be the executor. If you don't name an alternate executor, the court will have to appoint an executor.

Choosing a personal guardian

If you have minor children (under age 18), then you should appoint a guardian for each child in your will. This will ensure that, in the unlikely event that you and your spouse die your children are cared for as you would wish. You can name a separate guardian for each child or one guardian for all the children. If you decide to name a separate guardian for each child, you should provide a statement explaining why this is best for the children.

Here are some things to consider in choosing a guardian:

  • Is the person over age 18? A guardian must be an adult.
  • Does the person really care about your child?
  • Is the person physically capable of caring for your child?
  • Does the person have the time to care for your child?
  • Does the person have children close to the same age as your child?
  • Does the person have enough assets to raise your child if you don't leave enough? And is the person willing to take on this financial responsibility?
  • Does the person share your moral beliefs?
  • Will your child have to move?

These questions may help you come up with others. You should also talk with any person you might choose to be a guardian and discuss these questions and others. You don't want to name someone who doesn't want to do the job or understand its responsibilities.

Choosing a financial guardian

Because minor children cannot own property outright without adult supervision unless, depending on the state, it is under $2,500 - $5,000, experts recommend that the personal guardian should usually manage the money and property left for the children unless there are very good reasons for choosing someone else. For example, the person you choose as a guardian may not want to manage the financial inheritance in addition to caring for the children or he or she may not be financially savvy. In this case, you want to choose someone who is a good financial manager and is willing to do the job. If you do decide to have another person manage the finances, then make sure that the proposed guardians agree to this arrangement before you name them. You can leave property to a minor and name the property guardian in these basic ways:

  • Under the Uniform Transfers to Minors Act (UTMA).

    All states, except South Carolina and Vermont, have adopted this law. Under UMTA the property guardian is called a custodian. The child receives the property when they reach age 18 to 25 depending on the state. If you have multiple children, you will need to make a separate gift to each child.

  • Child's trust or Pot trust.

    Under a trust, the property guardian is called a trustee. Such trusts are legal in all states. You can either create a separate child's trust for each child or use a pot trust to leave property for multiple children. Under a pot trust, property doesn't have to be spent equally on each child. With a child's trust, you specify the age the beneficiary must reach before they receive the property. With a pot trust, usually the property is turned over to the beneficiaries when the youngest turns 18 or 21.

  • Property guardian.

    If you don't use one of the above methods, or there is property that isn't covered by one of the above methods, you name a property guardian. With this method, the property must be turned over to the beneficiary when they turn 18.

The amount of paperwork required for naming a property guardian and the requirement for court supervision vary among the methods. Consult a legal professional to decide what method is right for your situation.