Writing your own will is a complex process, as there are many issues that need to be addressed. The following are nine critical areas when writing your own will that you must think through and specifically address.
- Wishes for Joint Property: If you own property jointly with a spouse or another person, it will automatically pass on to the joint owner after your death. This means that you rarely need to specifically deal with naming a beneficiary for joint property, but you do need to consider such assets and address any potential legal hurdles to its passing on. This is also a good time to ensure that property intended to be held jointly, such as homes, cars, etc. are actually in both owners’ names to avoid them being held up in probate court.
- Inheritance Decisions for Personal Assets: The most important area to address in any will is to name who will receive which of your assets after your death and when. Many people choose not to always confer assets on beneficiaries right after their death. Instead they may phase distributions or not transfer property until a certain milestone is reached, such as an age or graduation. Keep in mind, however, that these conditions must be legal. Requiring a marriage, divorce, or change in religion, for example, may not be held as valid.
- Executorship: Your will should name an executor to carry out your wishes as established in the will, as well. This executor can be a lawyer, a spouse, an adult child, or another person you trust. Make sure that you account for any fees that probating the will may cost the estate, and don’t forget to follow any guidelines established by probate laws in your state concerning who may serve as an executor.
- Burial Instructions: If you have specific burial instructions, you can establish these in your will. Usually, such instructions will be detailed in a separate document, as well, so that your loved ones will be sure to see them before the will is formally examined.
- Guardianship: If you have minor children or handicapped dependents, you will need to address their guardianship in your will. This means establishing a guardian, as well as a trustee or property custodian for any assets left to them. You may even want to appoint a property guardian or a living trust for non-minor children you feel are still too young to handle the administration of your assets after your death.
- Debts, Expenses, and Taxes: Any debts, expenses, and taxes you owe can still be collected against your assets after you die. It’s a good idea to establish how these financial responsibilities will be dealt with by the estate. This can ensure that you do not leave assets to beneficiaries that are carrying a debt, such as a mortgage.
- Incapacitation: While not strictly part of your will, it is a good idea to draft a living will and power of attorney at the same time as a will. This will help ensure that your wishes are carried out in the event of your incapacitation. These instruments can ensure that your assets and dependents are taken care of during your incapacity.
- Estate Taxes: Your will and any other estate planning documents should take into consideration estate and inheritance taxes. You may be able to minimize the impact of such taxes through careful legal planning. This ensures that your loved ones are conferred as much of your estate as possible.
- Probate Laws: Every state’s probate laws require different standards to be met in wills. Some require wills to be notarized. Others have strict standards for who can witness a will and how. Still other probate laws define who can serve as an executor. If you want your will to be valid, you must comply with these laws.
Wills aren’t easy to draft on your own, but they are vital legal documents that you should have in place. If you are not sure how to get started writing your will in California, it may help to consult an experienced California estate planning lawyer.