Mamapedia: Are there standard guidelines I can follow with my will, if I'm not sure how they are generally written?

Guidelines for Preparing a Simple Will:

1.         Identify yourself by name and current address.

2.         State that you are of sound mind and understand the bequests you are going to make.

3.         Many attorneys next provide a clause for the payment of debts and name a particular fund out of which the taxes are to be paid.  This type of clause is certainly important when estate taxes are an issue, but is not an issue in a simple will and can be deleted.

4.         State that you are revoking all other wills and codicils (i.e., amendments to a will) you may have executed before.

5.         While there is no particular order that will clauses normally follow, often the executor and an alternate executor are named early in the will. The executor is the person who carries out your instructions and administers your estate after your death.

6.         Be clear over whether your executor must post bond. Some courts will require your executor to post bond unless you explicitly state that that the executor shall serve without bond. Bond premiums can be expensive.

7.         Normally inventory and appraisal of the assets of the estate, as well as accounting for receipts and disbursements, are waived in situations where testator (the decedent) wants to make the administration as simple and inexpensive as possible, and when the executor is a trusted individual.  

8.         You may want to give full and complete authority and power to your executor to sell all or any portion of the property and assets of your estate during the administration without any bond, authority from, or accounting to, any court, and to execute and deliver deeds or other instruments necessary to convey proper title. This is generally done when where testator wants to make the administration of the estate as simple and inexpensive as possible, and when the executor is a trusted individual.  

9.         You might then state that the assets will be divided in percentages to certain people and/or make specific devises (of real property) and bequests (of personal property).

10.       The residuary clause generally comes next. A residuary clause takes everything that was not already disposed of and gives it to your "residuary beneficiaries."

11.       Next comes a very important clause to a couple with young children the naming of the guardian of their children. Again you should consider whether or not to waive bond, inventory, appraisal and accounting in order to save administration costs during the probate and administration of the estate and guardianship. 

12.       In order to be validly executed, a will that is not written entirely in the testator’s handwriting (i.e., a holographic will) must generally satisfy the following requirements:

• The testator must sign the will in the presence of the required number of witnesses.
• If the testator does not sign the will in the presence of the witnesses, he must acknowledge his signature to them when they witness the will;
• The testator must state to the witnesses that the document is his will;
• The testator must ask the witnesses to attest the will (e.g., serve as witnesses).
• The witnesses must sign the will in the presence of the testator, and the witnesses must be credible (e.g., of sound mind and never been guilty perjury -- people that the law would permit to testify in court to uphold the will.

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Mamapedia: What is a will?

A will--more formally know as a last will and testament--is a document where a person, known as the testator, names another person (the executor) to manage his estate. The executor is responsible for carrying out for the transfer of the testator's property at death. But a will doesn't control all of a person’s assets. Most jointly-owned assets and those that have beneficiaries, like life insurance and retirement accounts, aren't controlled by a will. When a person dies those assets automatically go to the surviving joint owner or person who was named as a beneficiary.

Mamapedia: How much does it generally cost to get a will?

Attorney fees vary depending on how complex the will is, as well the time that's needed for the attorney to meet with you, get the information he needs, draft the will, and make sure that it is signed by you before witnesses (usually two) as required by the law of your state.  Wills can run anywhere from $250 to $2,500 depending on these various factors. Most attorneys charge a fixed amount for simple wills, but charge hourly for more complex ones.

Mamapedia: Do I need a will even if I don't have a lot of money or own a home or expensive property?

Someone who dies without a will is said to have died "intestate." There are laws that govern which heir-at-law will inherit the estate of a decedent who died without a will. An “heir-at-law” is the person legally entitled to inherit the property of someone who dies intestate. The term “estate” means all the possessions of one who has died and are subject to probate administration supervised by a probate court and distributed to heirs and beneficiaries.  Each state has laws of intestate succession that designate the persons who are to inherit the estate of a decedent who died without a will.   These laws vary from state to state vary, but generally follow these guidelines:

• If the person who died is married without children, their spouse inherits the whole estate.
• If the person who died is married and has children, the spouse and each child share the estate equally.
• If the the person who died has children and isn't married, the children [and grandchildren?] inherit the estate in equal parts.
• Managing an estate for a person who has no will generally takes longer and is a more expensive administration process than if there was a will. Another thing to keep in mind is that the deceased person's property may wind up being distributed in a way they never would have chosen to do it.

Mamapedia: When should I get a will -- when my kids are young, or older (and am older and more at risk of dying)? 

If both parents of a child or children die without a will, a court-appointed guardian takes custody of any minor children and of the estates of the children.  The following is a fairly typical statute dealing with this issue:

“Any parent, even though under twenty-one (21) years of age, may, by an instrument to take effect at the parent's death and wholly written and signed by him or her, or attested by two (2) or more credible witnesses .  .  .  . appoint some suitable person as guardian of his motherless or her fatherless child .  .  .  . subject to the approval of the court.”

Therefore, it is important to have a will, regardless of the age of your children. so that you can designate the guardian who will care for them and their property.

Mamapedia: What happens to my kids if my spouse or I die without a will?

If one parent dies, the surviving parent is generally the natural guardian of the children. But, if you and your spouse both die without a will naming a guardian of your children--and they are minors-- a court will appoint a guardian. That guardian will be the legal caretaker of any of your minor children and will be given virtually the same rights as a parent.

Mamapedia: I don't have a lawyer - can I still get a will?                                                                          

You do not legally need a lawyer to write your will. In some places, a will that is entirely in the handwriting of the deceased person and that is signed at the end is a valid legal document even if the [writing of the] will was not witnessed. There are some very inexpensive will forms online as well as software packages for sale in office supply stores.

You may want to talk to a lawyer if:

• You have questions about your will or other options for leaving your property.
• You expect to leave a very large amount of assets that may be subject to estate taxes unless you engage in tax planning.
• Rather than simply naming people to inherit your property, you want to make more complex plans -- for example, setting up a trust in your will for your spouse and/or children.
• You are a small business owner and have questions as to the rights of the surviving owners or your ownership share.
• You must make arrangements for long-term care of a beneficiary -- for example, setting up a trust for an incapacitated or disadvantaged child.
• You wish to disinherit, or substantially disinherit, your spouse. It is usually not possible to do this if your spouse objects, but a lawyer can explain your spouse's rights.

Mamapedia: Do I need to understand the law in order to have my will written?

As long as you sound mind and  over the age of 18 in some state (21 in others), you can make a will regardless of whether or not you understand the law. It is the responsibility of the lawyer to know and understand the law.