If you read any articles about whether you should have a will, every article is going to tell you that you should. This article is no different. You should have a will.
Jump ahead to these sections:
- What to Consider Before You Make Your Own Will
- Step 1: Choose Whether to Use an Online “Form” Will or Draft Your Own
- Step 2: Choose Whether to Type or Handwrite Your Will
- Step 3: Draft Your Will
- Step 4: Sign and Witness Your Will
- Step 5: Secure and Periodically Review Your Will
If you’re like most people, the dilemma you struggle with is not “whether” to have a will, it is “how” to have a will. There are only three options:
- Find an attorney.
- Fill out a “form” will from an online will service.
- DIY — complete a do it yourself will.
If you’re going to have a will, you’re going to have to choose one of these three ways to create it. Unless you are an attorney, you are probably a little nervous about a DIY will. But there is no reason to be nervous. This article will take you step-by-step through the process of how to make a DIY will.
Before you walk through these steps, however, you should consider whether a DIY will is appropriate for you.
What to Consider Before You Make Your Own Will
There are advantages and disadvantages to each of the three ways to have a will. The first two ways will cost money. The attorney will cost more than the online service, but not by a significant amount — maybe $200 to $300 more. But remember the old adage, “You get what you pay for.”
Consider the following factors that may help you decide which option is best for you.
- Complicated estates require an attorney. Wills are governed by the probate laws in each state. The more complicated your estate is, the more complicated are the laws that will apply to your will. If you have considerable assets (over $11.58 million), real property in different states, children, a mixed family, a business, or family members who you suspect will contest your will, then you should speak to an attorney.
- You do not need to include all of your assets in your will. For example, assets like life insurance, retirement funds, individual retirement accounts (IRAs), joint bank accounts, assets held in trust, and any payable-on-death accounts are considered “non-probate” assets. These will automatically transfer according to the terms of the respective instruments that govern them. You do not include these assets in your will. A DIY will may be sufficient for the assets that you will include in your will.
- Federal estate and gift taxes may not be an issue. The 2020 individual estate and gift tax exemption is $11.58 million per individual. If you are married, it is $23.16 million. Unless your total estate is worth more than $11.58 million or you gave away more than $15,000 in one year, you don’t need an attorney to advise about federal estate and gift taxes. A DIY will may be a viable option.
- A will does not have to be “legal” to be valid. Although each state has its own set of rules (probate laws) that govern a will, there are only certain things you need to include for it to be valid, and these are explained in the steps below. You don’t have to use a lot of “legal-sounding” words. As long as you follow the steps below, your DIY will is going to be as valid as a will drafted by the most expensive law firm in town.
- You may want to revoke or amend your will. Once you have a valid will, it does not become effective until you die. In the time between now and then, you may want to revoke your will or amend it by adding or changing a beneficiary, including more property, or naming a different executor. Paying an attorney or purchasing a new online form every time you need to service your will could become a rather expensive proposition. If you think you will need to service your will more than once, it may be prudent to have a DIY will.
If you decide that you cannot afford or do not need an attorney, then a DIY will may be sufficient. To ensure that your DIY will is going to be valid in your state, follow the steps below when you create your will.
Step 1: Choose Whether to Use an Online “Form” Will or Draft Your Own
The primary consideration in choosing whether to use a form will or write your own will should be whether you know or can research the probate laws in your state. The probate laws in every state are usually easily accessible online.
If you can obtain them and understand the basic laws for wills, you can write your will yourself. If you do not know or cannot find the probate laws of your state, you should use one of the online services for your will.
The wills from the online services are usually designed to accommodate the specific laws of each state. But they are not always updated with the current laws.
If you choose a form will from a service, you can stop here. The service will provide instructions for what you need to do online. However, if you choose to write your own will, just follow the remaining four steps.
Step 2: Choose Whether to Type or Handwrite Your Will
If you choose to create your own will, you can either type the will on your computer (leaving spaces for all signatures to be handwritten) or you can simply write your entire will by hand. Your will is not required to be of a certain length.
Some jurisdictions will recognize your will as valid without any witnesses if it is entirely in your handwriting. This is called a “holographic” will. If your state does not recognize holographic wills, then you must have the minimum required number of witnesses, even if the will is still entirely in your handwriting.
Some jurisdictions that recognize holographic wills require only that the “material portions” of the will (the property, the beneficiaries, the date, your signature) be in your handwriting. You must know your state laws to know what is permitted and required.
Step 3: Draft Your Will
To draft your will, simply include the following information using plain language.
- Write the date at the top of your will.
- Write a statement that includes:
- Your full name
- Your full address (including residence, city, state, and county)
- Your age
- A statement that you are competent and not suffering from any mental impairment (such as mental illness or the influence of any substances)
- A statement that you intend for this document to be your last will and testament
For example, you should include a statement similar to the following:
“I, [full name], residing at [full address], being [age] years of age and of sound mind at the time of this writing, intend for this document, upon its execution, to be my last will and testament.”
- Identify the person or persons who you want to handle your estate when you die (the executors).
- Identify any children (by full name and age) and any persons (by full name and address) who you wish to serve as the legal guardians of your children if your children are minors at the time of your death.
- Describe any specific piece of property that you wish to give away upon your death. Be as descriptive as you can be, sufficient to identify the property. For example, do not just write, “I give my car to...” Instead, write, “I give my red, 1967 Mustang convertible to...”
- Identify the person or entity that you want to receive the piece of property you just described. Include the party’s full name and state the nature of your relationship sufficient to distinguish this beneficiary from any other person or entity.
- If you have assets remaining that are not specifically included above, include a statement (called a “residuary clause”) naming the person who you want to receive whatever other property remains in your probate estate (a “residuary beneficiary”).
- Include any other statement, wish, or directive that you want your executor to do or that you want any other person to know.
- Craft a place for you to sign your will in your handwriting (but do not sign it yet).
- Unless this is to be a holographic will, under the place for your signature, include a statement to which your witnesses will attest that they heard you state that you intend this document to be your last will and testament and then saw you sign your name to the document. (Do not yet sign, and do not yet have your witnesses sign the document.)
- Each state will require a minimum number of “disinterested” witnesses (usually two). A “disinterested” witness is someone who does not benefit from your will any more than they would benefit if you died without a will.
- If necessary or desired, on a new sheet of paper, you may include a similar statement (called a “self-proving affidavit”) in which a required number of witnesses (or just a notary public, in jurisdictions that recognize notarized wills) attest that they observed the witnessing of the will and that the witnessing was proper.
- Secure all the pages of the entire document with a staple.
Step 4: Sign and Witness Your Will
If your will is a holographic will, you may sign your will.
If your will is not a holographic will (which, therefore, would be called a “witnessed” or “statutory” will), do not sign your will until you are in the presence of all of your witnesses.
Note that state laws may define various aspects of the witnessing of the will differently. You will need to be sure of what is required in your state:
- Some states may require that the testator and all required witnesses are present together, at the same time, and witness each other sign the will.
- Other states may allow each witness to witness the testator’s signature separately, within a reasonable amount of time from each other. The first witness will observe you actually sign the will; to the other required witnesses, you will acknowledge that the signature already on the will is your fully-intended signature.
- Also, some states require that witnesses actually see you (and each other) sign the will so that they can observe the signature (this is called the “sight” test).
- Other states require only that the witnesses be aware, from all of their senses, that you are signing your will and that, if they had directed their attention toward you, they could have seen your signature on the will (this is called the “conscious presence” test).
You will conduct the same witnessing process with the witnesses (or notary, if permitted) who complete the self-proving affidavit. Of course, those witnesses must be present to observe the witnesses sign the will with the testator.
Step 5: Secure and Periodically Review Your Will
When your will is properly executed, you should keep the originally-signed document in a secure place. You should provide a copy of your will to your executor and be sure your executor knows where you keep the originally signed will. Your executor may not probate a copy of your will.
Review your will periodically. If you wish to amend your will (called a “codicil”), you must follow the same steps above as for validly executing your will. If you wish to revoke your will, your state law will have specific steps to follow for validly revoking your will.
Take Five Simple Steps to Validly Execute a DIY Will
Having a lawyer draft your will may be the appropriate first step to take if you want a valid will. However, a DIY will can be just as valid as any lawyer’s will if you follow these five simple steps:
- Choose whether to use an online “form” will or draft your own will.
- Choose whether to type or handwrite your will.
- Draft your will.
- Sign and witness your will.
- Secure and periodically review your will.