How Should I Structure and Execute My Will?

A last will and testament may be your most important financial document, and you'll want to consider the optimal ways to structure and execute it.

5 key questions to structure your will

Answering the following questions will provide the foundation for structuring your last will and testament.

1. Who should I name as my beneficiaries?

This can be a single individual, a number of individuals, one or more nonprofit organizations, or a combination.

2. How should my assets be distributed among beneficiaries?

In a will, you can list specific items and who will receive them. These items may include heirlooms, the family home or other assets. You can also bequeath specific dollar amounts to various beneficiaries. And you can designate a certain percentage of your assets to beneficiaries of your choice, once expenses and debts have been paid and other bequests have been made. Many people choose to incorporate a combination of these approaches. Remember, you can make changes later if needed; the key is to have a will in place.

3. Who will I name to serve as executor of my estate?

This person can be a family member or trusted friend, a legal or financial professional or an institution. Keep in mind that serving as executor of an estate can be a time-consuming process involving detailed asset valuations and reporting. The most effective executor is one who has the needed skills and can dedicate the time required to fulfill these responsibilities. You may prefer to designate co-executors, including a family member or friend along with an institution.

4. Do I need to name a guardian for my minor children?

If you have young children, naming a guarding for them is an important step. You may also want to establish a trust and name a trustee to protect their inheritance.

5. I have complex family relationships. Might this require additional legal documents?

Possibly. If, for example, you're in a second marriage involving a spouse's children from a previous marriage, you may want to talk with your attorney about ways to ensure your assets are divided according to your wishes.

The process of structuring and executing your will

When structuring a last will and testament, remember that states have different requirements to ensure that a will is honored. Here are the typical steps involved in structuring and executing a will.

1. Getting witnesses

Typically, a will must be written, signed, dated and witnessed by two people to be considered legally valid. In some states, the document must also be notarized. To avoid any implication that you've written the will under undue pressure, beneficiaries to the will shouldn't serve as witnesses. It's a good idea to initial and date each page of the document.

2. Filing your will

Following your death, your executor must file your will with the appropriate clerk of court, typically in the county where you were residing at the time of your death. The court determines whether the will is valid and, if so, allows it to enter a process known as probate.

3. Probate

Upon probate, your executor is required to follow a number of actions. These actions include providing detailed inventories of your assets and their value, ensuring that all insurance and other proceeds are received and that all debts and taxes are paid. The court oversees each step in the probate process, which typically takes at least 6 months and often longer.

Some wills don't have to be submitted for probate. If all property is held in joint tenancy or is owned by certain types of trusts you've created, probate may be avoided, along with the costs of probating the will. When probate is complete, your assets can be divided among your beneficiaries.

Keeping your will up to date

It's important to review your will from time to time, especially if key events in your life trigger the need for possible changes. Examples include:

  • Marriage or divorce
  • Birth or adoption of a child or grandchild
  • Death of a named beneficiary
  • Death of an executor or guardian
  • Change of residence to a different state
  • Dramatic change in your financial circumstances
  • Regulatory change affecting estate planning

It may not be necessary to completely rewrite your will in order to update it. You may be able to attach a codicil—a written amendment used to add to, remove from or otherwise modify the terms of the original will. A codicil must be signed, witnessed and dated, and must reference the original will.

As with all important financial documents, it's important to store your will in a safe place where it will be easily accessible. Make sure to talk through the provisions of the will with your executor(s) and provide a copy to them.

The bottom line

Creating a will is a smart financial move. First, you need to answer some important foundational questions. Once you've structured your will and understand how it will be executed, you'll want to keep it current. Then, you can rest easy knowing that your loved ones will be taken care of in the future.

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