At My Estate Planning, we understand that thinking about your passing is never an easy thing to do. Too many emotions to deal with. Too many details to think about. And too many legal words, tough decisions, and confusing legal processes to navigate. Everything can get a bit overwhelming.
But one of the most important gifts anyone can leave their loved ones is a clear and trouble-free will. You need one that is complete, 100% legal, and one that reflects your wishes. Here are a few of the most commonly asked questions about setting up a will that we hope will make your experience stress-free and hassle-free as possible.
What are your will writing service options?
It is important to remember that a will is a legal document and will act as your final instructions on how you want your estate to be dealt with after death. Your estate will have two sides to it:
- Your assets, which are your belongings, your bank accounts, and any money that you owed, such as pensions (which are known as entitlements)
- Your debts and liabilities, which are things that must be paid off as part of settling your estate (mortgages, loans, credit cards, and the like)
Knowing what a will is and does is the first step in setting up a will. The next step is to consider options that are available to you as you think about putting your final wishes into a legal form. Basically, you have three options:
Option #1: Do It Yourself (DIY) wills are inexpensive, relatively straightforward options, often taking the form of a will template, or standardized form that walks you through a checklist of items you are required to complete to make the will legal. This option can be a great option especially if:
- you have a simple will, which might mean that you are married and want to leave everything to your partner
- or if your partner has died before you and you want to divide your post-tax assets between your children or even leave the entire estate to a charity.
The benefits of DIY wills are that they:
- can be completed relatively quickly, especially if you have limited assets or you need a very clear-cut situation that can be captured easily and elegantly in an uncomplicated document
- cut the cost of a will dramatically be given that you are doing the bulk of the work yourself
If you do choose this option, there are a few tips to help you make sure that things go exactly as you want once the will begins its way through the legal process after your death:
- Ensure that the will is completed appropriately in terms of all necessary signatures, correct dates and that it is witnessed correctly. A good template will give clear, easy-to-follow instructions on what you need to pay attention to.
- Check your spelling very carefully. Sounds simple, I know, but remember you won’t be around to clarify that although you spelt it Salli you clearly meant Sally.
- Be specific. Use full names, specific addresses (not just “my house”), and detailed descriptions (not just “my watch”) to avoid any possible confusion.
- Destroy any old wills, and if you are making a new will be sure that it includes a clear statement that it replaces or revokes any previous wills.
- Finally, be sure your executor knows where your will is.
Doing it yourself is not as daunting as it seems. Just be sure that all details are complete and all the information you’ll give (and wording you use) are clear as possible.
Option #2: Prepaid Legal advice is an option if your will is more complicated than a DIY template might allow. Situations in which getting a solicitor involved in setting up a will makes sense include if:
- You own any property outside the country in which you live
- You have foreign bank accounts or investments
- You own a business that you are leaving to someone as part of your will
- You have a complex list of wishes or wishes that might be misunderstood after your death.
As with any legal service, the cost of wills will range widely depending on your needs and wishes, so be sure to shop around for the best fit. But for more complex and special wills, using a solicitor will likely reduce stress for those people left to deal with your estate after your death.
Option #3: Professional Advice is what My Estate Planning offers in the form of a will writing service is an appealing middle ground between DIY and full legal support. At My Estate Planning, we provide full-service expertise while at the same time reducing the cost of a will. Available online or face-to-face, these services talk with you about your wishes and provide a draft will for you to review before filing. Less expensive than engaging a solicitor, a service provides more guidance and expert support than a DIY will template.
What properties to include in a will?
Once you have decided on the right option, you will want to make a complete list of the assets that you will want to be managed in your will. Again, the key is to be thorough, complete, and as detailed as possible when making your list. Here are the four main categories you will be asked to define:
- Actual properties are things that can be touched or held. Most obviously, a house or piece of land is tangible as are furniture, vehicles, household goods, jewellery, and even your much-loved vinyl record collection. You would want to put in detail who gets what as part of the will or if you want everything sold (converted to cash), donated, or disposed of in some other way.
- Cash is exactly that: the total amount in your bank accounts, in your wallet, or tucked under the mattress. Actual property can also be converted to cash if instructed in the will to make dividing your assets a bit easier for those involved.
- Intangible personal properties are items that represent value but cannot be held or touched. If you own a stock or stock portfolio, for instance, it is listed as an intangible property since you cannot touch the asset, which can be either given as a gift (Sally gets all my shares in Company X) or sold, with the cash then gifted as per your wishes in the will.
- Unproductive properties are the remaining pieces of your estate. These are non-cash and non-tangible items that are not worth cash (as in stocks) but are in your estate, nonetheless. Stock certificates from that long-closed gold mine in Bolivia might be an interesting piece of memorabilia but are of little value directly or as a revenue generator.
Your list of assets is now complete and you can turn to make a list of the important people (known as parties to the will) that you would want to include in the final document.
Who are the parties included in a will?
When your list is complete, it is time to name the people who will be most important to ensure that your estate is managed properly after your passing. There are five key roles you will have to fill:
1.) Testator or Maker
This is you, the maker of the will. To make a will, you have to prove that you have what is called testamentary capacity. What this means is that you have to be 18 years of age or older, of sound mind, and understand what a will is and how it relates to your life and death. You must also sign a statement that you made the will without committing fraud, were free of duress (threat) or undue influence (family pressure), and that you did not knowingly include a mistake in the document. Finally, your will has to be completed as part of a proper process and ceremony.
2.) The Executor or Personal Representative
This is the person or people who will be responsible for making sure that the wishes detailed in your will are followed, whether that’s paying any taxes owed, and for making sure that all laws are followed as the will is completed (also known as being executed). Some tips for selecting the right person for this role include:
3.) Legal Guardians for your children
If your children are still minors, they will have to be cared for until they are recognized as adults by law. In most cases, minors will remain with the surviving parent, but in cases when both die at the same time (an automobile accident, for instance) or one parent has passed before the other, the children will be raised by the Legal Guardian named in the will.
This is probably the most important (and most emotional) decision you will make in setting up a will so take your time, talk the decision through with your children, and be very comfortable with your choice before putting it in the paper.
4.) Trustees for Minor Trust
Again, if you die before your children are still minors, they cannot legally inherit anything from you until they reach an age that is usually set out in your will (also known as the age of maturity). In this case, their inheritance goes into a trust that is managed by a named trustee whose job is to ensure that assets are managed carefully and that any expenditures on behalf of the children (for education, for instance) will align with the wishes in your will.
5.) Alternate Beneficiaries
In most wills, assets are divided between a spouse, partner, and children (known as the beneficiaries). But in some cases, the beneficiaries might pre-decease you or become ineligible for some reasons.
In these cases, naming an alternative beneficiary (a charity, for instance, or a group of charities) will ensure that your estate is distributed in a way that reflects your wishes.
As a legal document, all signatures on a will must be witnessed by at least two other people. You must sign your will, for instance, in the presence of two people, who will then sign stating that it was you who signed the document, that you were not intoxicated or under any form of pressure, and that you are in your sound mind and body.
What are the probate processes?
With your will built and filed correctly, you can live the rest of your life worry-free (at least about your will) because after your death the process of probating the will is set by the law into a set process that will not vary despite the type of will you have.
Here is a quick guide to the steps of processing everything from a simple will to the most complicated.
1.) Step #1: Authenticate the last will and testament that involves filing one or more of the following with the probate court:
- Your death certificate
- Your official will
- Petition to open probate, which allows anyone who might have an issue with the will (from spelling to the existence of a later version) to raise in court within a set period.
2.) Step #2: Get a formal recognition of your personal representative or executor by the court, which issues a formal document acknowledging that the person has the legal right to fulfil your wishes as outlined in your will. As noted earlier, an executor is (or should be) specified clearly as part of your will, making this a relatively simple step in the probate process.
3.) Step #3: Do a posting bond that means that the executor essentially takes out an insurance policy that protects the estate in case an error is made that damages the value of the estate dramatically. Some will make this step an option while others make it a mandatory requirement.
4.) Step #4: Make an inventory of assets. The executor locates and takes possession of all the assets in your estate so that everything can be distributed as per your wishes. This might mean making sure your house is cared for and insured until it can be sold, or a new owner takes possession, keeping all jewellery in a safety deposit box, or making sure that all investments are managed carefully until the will is executed in full. This step can be complicated and time-consuming in many cases.
5.) Step #5: Determine the date of death values that sets the value of your assets at the time of your death as well as how these values are set. This step might involve getting one or more appraisers to ensure that values are accurate and fair.
6.) Step #6: Publish a notification of your death to creditors and the public as seen on newspaper ads declaring that a person has died and anyone with money owed to them from this person has a set period of time to step forward and make a claim for payment from the estate.
7.) Step #7: Pay debts and bills in full before distributing the estate.
8.) Step #8: File tax returns which now include estate taxes (usually paid within the first year of your passing).
9.) Step #9: Distribute the assets after determining its value and after your final bills have been paid, including:
- Outstanding debts
- Personal and estate taxes
- All estate administration costs for any paperwork, appraisals, sales commissions, transfers papers (for vehicles, for instance), and the like
- Funeral expenses
- Personal and estate taxes
- Any gifts and bequests that you have detailed in your will.
This is the step in the process when all gifts are delivered, all money dispersed, and all trusts are set up. This is the favourite step of the will process just like those presented in the movies: everyone listed in the will finally find out what they get, usually while gathered in a wood-panelled room sitting in hushed, tense silence which is much less dramatic.
10.) Step #10: Intestate Estates occur when the deceased does not have a valid will since one was never made, or it was not accepted as valid in probate court. In these cases, all assets are passed to the deceased’s closest relatives. Processing an intestate estate involves filing a petition with the probate court to serve as the de facto (in fact) executor of the estate. Once the court decides on the application, the appointed administrator then deals with the estate to the best of their ability while trying to do what they believe the deceased would want to happen.
11.) Step #11: Do final accounting. This process ensures that all previous steps have been completed and that all assets have been dispersed according to the terms and conditions of your will. With this step completed, your estate is closed, and the process ends.
The stress and cost of writing a will should not be overwhelming.
Contact MyEstate Planning today for answers to any questions you might have about anything from a simple will to more specialized document. They can help make the will writing process as hassle-free as possible.