Creating a Will: Guidelines & Considerations

Writing a will is a crucial task that provides peace of mind for both you and your loved ones. Once you’ve created a will, you can rest assured that your family will be taken care of and that your assets will be managed appropriately after your passing. A will lets your family members know what your final wishes are, so they can find peace and closure in fulfilling those wishes. 
 
It isn’t necessarily easy to create a will, as we rarely want to consider our own mortality. But it’s important, both for you and your family, that you have a will. The process of creating a will is not overly complicated or expensive, and it is well worth the clarity and comfort it provides. 
 
This post highlights some of the important aspects of will creation. This guide should ensure that you don’t miss any key components when creating your will or helping a loved one create theirs. If you make sure that the will you write includes the following components, it will be legally valid and will stand up to any challenges. 

What is a Will?

A will is a legal document that dictates how its writer wishes to have their estate managed after passing. The estate includes everything from large items like houses and properties to smaller items like family photographs or personal belongings. A will also designates guardians for any children or dependents. 
 
A will names an executor, who is legally obligated to implement the wishes and division of assets outlined in the will. It also names powers of attorney, who make decisions on behalf of the will’s writer if it becomes necessary to do so. Any person who receives property as a result of a will is called a beneficiary

Why is it Important to create a will?

Having a will allows you to manage the transfer of your property and the execution of your wishes after you have passed. If you do not have a legal will, your estate will be transferred to a judge-appointed administrator, who will manage the estate according to state or provincial laws rather than according to your wishes. 
 
Once you’ve written a will, you can rest assured that your estate will be managed and distributed exactly how you’d like it to be. You can hand-pick the recipients of each part of your estate, no matter how small, and express the intentions behind your choices. 
 
Another key aspect of having a will is that you are able to choose your own executor, which means that you can select a person you trust to carry out your wishes. If you do not have a will, your estate will be distributed by someone who did not know you, without your preferences in mind. Without a will, your sentimental attachment to objects, your knowledge of what your children do and do not need, and your beliefs about how your assets should be handled will not be taken into consideration. 
 
You may believe that having a will is only necessary if you have children, but this isn’t true. A will makes your intentions clear to all of your loved ones, which will be of solace to them after you have passed. A will can also provide you comfort, as you will not have to worry about the management of your assets in the future, regardless of your current age or state of health. 

Creating a Will

You may decide to create your will yourself, or to enlist the assistance of a family attorney. No matter who you’re creating a will for - yourself, or your aging loved one - and regardless of whether you're doing it on your own or with an attorney's help, this list of considerations should help guide you along the way. 

Who to Include

In order to ensure the legality of your will, you will need to make some key appointments. Without these appointments, the will may not be legally viable. A judge can invalidate a legally inviable will; if this occurs, the state will take responsibility for the management of the estate. 

Key appointments are as follows:

  • Executor: The executor ensures that the directions you provide in your will are followed. They are also in charge of paying any final debts, closing accounts, and dividing up property. Typically, an executor is a trusted friend or relative, but you can also choose an attorney, or a bank. Unlike friends and family, attorneys and banks require compensation for their services. 

The only persons you cannot appoint as your executor are those who may have a conflict of interest, like a financial advisor. 

  • Powers of Attorney: You will need to appoint two Powers of Attorney (POA). One is in charge of financial responsibilities, and the other is tasked with health care decisions. These individuals come into play when the creator of the will is incapacitated and is unable to make important decisions. The financial POA handles investments and debt payments, while the health care POA makes decisions about treatments, surgeries, and life support. 
     
  • Witnesses: A will is considered legal only if two or more witnesses have signed it. Witnesses must be over 18 years of age and cannot be beneficiaries of the will. Multiple witnesses are necessary in order to secure a will’s legality because they can testify to the will’s legitimacy should it ever be challenged in court. In the US, depending on the state you live in, you may require a minimum of three witnesses rather than two. 
     
  • Beneficiaries: A beneficiary is someone who will receive a part of the estate: money, property, or personal belongings. If you have specific ideas about which people to whom you’d like to leave certain assets, you can outline these wishes in your will so that your executor can distribute your estate according to your instruction.
     
  • Guardians: If you have children or dependents under the age of eighteen, you can assign guardians to them in your will. 

What to Consider

After the required parties have been included in your will, there are a few other components to consider. By keeping the following things in mind, you can avoid errors that might cause a will to be challenged in court, and therefore avoid resulting legal fees and frustration for family members.

Clarity

A lack of specificity is one of the primary reasons a will might be challenged in court. If a will does not clearly state which assets go to which beneficiary, it can be challenged. Try to ensure that the language in your will regarding the distribution of your estate is explicit, so that the terms of the will can be followed without being called into question. 

Safe Storage

It’s essential to remember that a will can only be considered legal if it is the original, notarized version. A judge will not accept a copy of a will. Many families keep wills in safety deposit boxes to guarantee that they are in safe, accessible locations. 
 
It’s also important to make sure your family members and/or your executor are aware of where you are storing your will. If your original will cannot be located, it cannot be used, and the estate will be handed over to the state. You can keep copies for reference, but the state will only acknowledge the original document. 

Keep it Updated

A will should be updated after any significant family event, such as marriage, divorce, the birth of a child, or the passing of a family member. Wills that are not up-to-date can be challenged on the basis that they do not consider recent major changes in the family. Even if you don’t intend to create new beneficiaries, be sure to update your will so that it acknowledges new family members. 

Letters

The wording of your will needs to be specific and deliberate, so that you executor understands exactly how you wish your assets to be handled after your passing. This careful wording may seem cold, and it might make you feel as though your loved ones will not understand all of your decisions. To solve this problem, you can leave informal letters along with your will, which explain your decisions to your family members and express your feelings to them. This is not a required step, but many people choose to write letters in order to communicate their final wishes to those they love. 

Peace of Mind

Creating and maintaining a legally valid will can be emotionally difficult, but the physical process is not overly complex. This guide outlines the key components of a will and should allow you to begin the process of creating a will for yourself, or helping a loved one create theirs. If you are uncertain about any of the steps and want more guidance, you have the option of hiring a lawyer to assist with the process. 
 
Losing a loved one is always painful, but making sure that you have a legal will can prevent additional grief, frustration, and confusion for your loved ones after your passing. Your final wishes, laid out clearly in an up-to-date will, can ease some of the stress of such a devastating time. A detailed will can serve as a final act of kindness to your family after you’ve passed on, providing those you love with clarity and closure.