Creating a Will can be an emotional experience. It hits you that this is about your mortality and those you cherish most. You want this important document to be right. Before crafting your Will, you should know its makeup: the legal terms, how to list assets and beneficiaries, and the proper way to write bequests and special instructions. We’re going to break down the different parts of a Will to help make the process a little easier.
What is a Will?
A Last Will and Testament is a legal document, the main component of an estate plan, where you can express your wishes of how you want your estate to be divided after you die. It allows you to list the assets you want to leave and name the beneficiaries to whom you want to receive them.
In the Will, you appoint an executor who is responsible for carrying out the instructions you included in the document. If you have minor children, you can name a guardian to care for them if something happens to you.
This document becomes effective upon your passing and must go through the probate court in the county where you live in order to have it validated.
Related Article: Why Everyone Over Age 18 Needs an Estate Plan
If you die without a Will, the state will take control of your estate and distribute the assets through its intestacy law. People you may not want to inherit anything could end up with a valuable asset. A Will gives you control of how your estate is handled upon your passing.
Legal Terms in a Will
These are the legal definitions used in a Will:
This is you, the person creating the Will.
These are the testator’s loved ones, family members, friends, organizations, or charities to whom you want to bequeath (leave) your assets after you die.
This is a person you appoint to take legal care and custody of your minor children in the event you and your spouse, or if you are a single parent, pass away before the children turn 18 years old.
The testator must appoint someone to oversee the Will and carry out your instructions for bequeathing the assets you listed to the beneficiaries you named. The executor/personal representative also closes out the estate and pays bills, final taxes, and debts.
Related Article: Checklist: How to be an Executor of a Will
What are the Parts of a Will?
A Will has several different parts. Here is the breakdown:
1. The title – Also known as the preamble, this must be written at the top of the document. It can be simply written as “Last Will and Testament of (your name).”
2. Name of testator – You, the creator of the Will, must write your full legal name in the title as described above.
3. Revocation of prior Wills – If you are writing a new Will, you must include a statement revoking all previous Wills and codicils.
4. Statement of family – Include the names of your spouse and children.
5. Declaration – This is a statement including your name and address, declaring you are of legal age and sound mind, and that this is your Last Will and Testament. You must also write that you are not under duress or being influenced in creating the Will.
6. Appoint executor – Name the executor (also known as the personal representative) who you want to be responsible for settling your estate.
7. Name guardian for minor children – If you have minor children, you can appoint a guardian to care for them if something happens to you. The legal care of minor children automatically passes to the surviving spouse if they are deemed competent and there are no legal issues.
8. Bequeathing special gifts – These are items of real value – monetary or sentimental – that you want a particular loved one or a favorite charity to have upon your passing. It could be a stock, specific cash amounts, a car, a vacation home, or an heirloom. Name any specific assets you want to bequeath and carefully describe each. Examples: “I hereby bequeath my mother’s wedding ring to my daughter, Sue.” Or, “I hereby bequeath my Microsoft stock to the American Red Cross.” If you have a pet, you can name them in your Will along with the person you want to care for it if you pass away. However, pets are considered to be property, and therefore you cannot name them as a beneficiary.
Related Article: Guide: How to Protect Your Pet with Your Estate Plan
9. Residuary clause – This a statement in your Will that basically covers the bulk of your assets that may be left when all the estate’s bills have been paid, and assets bequeathed. Also, this would cover any obscure asset you may have forgotten about when creating your Will. You can simply state that any remaining assets can be left to a certain beneficiary, split among a class of beneficiaries, or instruct the executor to decide how to distribute these assets.
10. Name beneficiaries – List each beneficiary and beside each name, write the asset you want them to receive and include instructions as to how and when the executor should transfer them. As an example, if you are leaving cash to a son or daughter, you could instruct that the money should be transferred when they reach a certain age or complete college.
11. Special provisions – Since minor children cannot inherit assets until they turn 18, you can write a provision in the Will to create a Trust for your minor children. You can include property or cash in this Trust and instruct that the minor children are the beneficiaries when they reach legal age.
Related Article – 8 Reasons You Might Need a Trust
12. Signature – You must sign your legal name to make the document valid.
13. Witnesses’ signatures – Most states require at least two witnesses when you sign the Will. They must sign the document after witnessing your signature.
14. Notary seal – It is strongly recommended to have your Will notarized by a notary public. This helps prove the validity of the Will and may speed up the probate process. You can also include with the Will a self-proving affidavit which affirms your signature and the signature of the witnesses.
Related Article: Q&A on Notarizing Your Estate Plan
You should review your Will periodically and update it if you have any life changes such as marriage, the birth of a child, a divorce, acquiring or selling assets, or death of a beneficiary or executor.
What NOT to Include in a Will and Why
There are few assets you should not list in your Will:
- Digital assets – Social media accounts like your email, Facebook, etc. should not be included because you do not own them. Some social media companies have digital legacy provisions where a legacy contact you name can access your content. Other digital assets are your pictures and videos in cloud storage accounts like Dropbox or iCloud, and websites.
Related Article: How Apple and Facebook Bridge the Gap in Digital Legacy Planning
- Investment or financial accounts – Proceeds in checking/savings, accounts, 401(k)s, stocks, and bonds with transfer on death designations because these will automatically transfer to the named beneficiaries upon your passing.
- Cryptocurrency/NFTs – Keeping in mind that a Will becomes a public document when you pass away, and since the only way crypto like Bitcoin and NFTs can be accessed is with a private key – a password – you don’t want that access code out in the world for everyone to see. When writing your asset list, mention you are leaving your cryptocurrency to your named beneficiary and notate you have a digital asset list document with access info. That document stays private.
Related Article: Including Cryptocurrency and Digital Assets in Your Will
- Assets in a Trust – A trust does not go through probate. So, any asset in a Trust typically transfers directly to the named beneficiary according to the specific terms in the trust when you pass away.
- Usernames/passwords/account numbers – These should be listed in a separate document that does not go through the public probate process. As with the crypto, include a statement in your Will that all account access information is on a digital asset list. Gentreo offers a Digital Family Vault to securely store such information.
- Out-of-state/foreign assets – It may be best to create separate Wills for assets you own in another state or country, since laws regarding Wills vary state-to-state and in foreign lands.
Related Article: Out-of-State Assets and Your Estate Plan
- Jointly-owned assets – Any property or accounts that you own jointly with a spouse will pass to the surviving owner, negating the need to include these in the Will.
Securely Store Your Will
Once your Will is created, you should store it in a secure, accessible place. Gentreo’s Digital Family Vault offers the best solution to safely store your online Will, your estate plan, and related important documents such as insurance policies and digital asset lists. You and anyone you choose can have immediate access to your documents when needed from anywhere.
Need Help Creating Your Will?
Gentreo’s coaches are always standing by to help guide you through the process of creating your online estate plan. And because laws vary state-to-state, get state-specific answers to your legal questions from our network of third party estate planning attorneys in all 50 states.
