When you die, if you don’t have a will, your money, assets, and estate will be left to your family based on the California Probate Code. No one likes to consider their own death, but it’s important to know clearly what you want to happen to your estate after your passing. Those wishes should be listed out in a legally enforceable document. That’s where a will comes in. Now that you know you need a will, you’re probably wondering how to make a will, this guide will tell you.
The Importance of a Will
Your will lists out your after death wishes like who will inherit which of your assets and who will be responsible for honoring your wishes. If you die without a will, you leave your family wondering what your wishes were and your estate in a legal limbo called intestate.
Without a will, your family will be required to settle your estate in court and based on the laws of your state instead of your wishes or what might be best for the family. This transfer of assets to heirs in court is known as probate. For families with complicated social ties or large estates, this can be especially time-consuming, costly, and emotionally distressing.
With a legally enforceable will, you set down who you’d like to settle your estate, naming them your executor. Your executor then executes on your wishes, giving assets to the listed beneficiaries after a court order is issued by the probate court.
Who Should Create a Will
Everyone needs a will. Simply put, if you want your family to inherit your things after your death, you need a will. Without one, the inheritance process is much more complicated and emotionally painful.
Many people think that they have limited assets and that a will is for someone who has an extended fortune. This is a misunderstanding. Everyone has assets and everyone should have a will. In California, if your estate is less than $150,000 total and includes less than $50,000 in real estate, you can avoid probate so your legal heirs can inherit your assets without going to probate court. A will also protect your loved ones from having to guess what your wishes might have been or letting the probate code decide who gets what.
An important consideration when creating your will is whether or not you want to create a joint will with your spouse. Most estate planners advise against joint wills because it’s unlikely that you will die at the same time as your spouse. In addition, many states don’t recognize joint wills. Your will might end up looking very similar to your spouse’s, but it’s still important that you each have an individual will.
Do You Need a Lawyer to Make a Will?
The smaller the number of assets you own, the more straightforward it will be for you to create a will. Another important point to consider is the number of heirs or beneficiaries you’ll be listing in your will and whether or not you have challenging family dynamics. Is someone likely to object? Are you disinheriting someone? Giving one child a larger share than the other?
In general, as long as you comply with your state’s laws, you can create a legally enforceable will on your own.
If you don’t feel comfortable drafting your own will or you start and realize it’s more complicated than you knew, there’s no harm in asking for the help of a will attorney. You also may just want to pay for a will to make sure it’s done right. If it isn’t, you won’t know until you’re gone. If the will is invalid, your wishes won’t be taken into account and the laws of intestacy will take control.
Why It Isn’t a Good Idea to Make a Simple Will Without an Attorney
While drafting a will on your own is an option, creating a will without an attorney puts your family in a vulnerable position. After your death, if it’s discovered that your will doesn’t abide by the laws of your state or there’s a problem, your family will have to spend time and money in probate court settling your estate while attempting to abide by your wishes.
If you hire a will attorney to craft your will, you have the peace of mind to know that your wishes will be followed upon your death and that your will is legally enforceable.
Examples of a Will Made Without an Attorney and a Will Made By an Attorney
There are some common mistakes that people make when creating a will on their own. How to make a will isn’t complicated, but it’s easy to make a mistake. That’s why it’s important to seek the help of an experienced will attorney.
These are common mistakes people make when creating their own will:
- Not being specific enough
- Not declaring that all previous wills are revoked
- Forgetting to update the will
- Losing track of the will and important paperwork
- Passing on assets to people who are minors without a trust
How to Make a Will that Won’t Be Invalid
Image alt description: A trusted will attorney in San Diego can help you in how to make a will that’s valid and follows your wishes.
Each state has its own laws that govern a valid will. It’s important that you seek the help of a will attorney to make sure that your will is valid and won’t cause problems for your family after your death.
In general (though this is not an exhaustive list of requirements), a valid will must include:
- Your signature
- Signatures of two witnesses
- Date of execution
The witnesses who sign your will don’t need to know the contents of your will, just that it is your will. These are general requirements to make a valid will, each state will have its own specific requirements. If the requirements of the state are not met, it may qualify as a holographic will. A holographic will has other specific requirements such as requiring all material provisions to be in your handwriting.
1. Choose a Qualified Will Attorney Near You
When you’re ready to create your will, the most important and first step you should take is to identify and contact a qualified will attorney. If you’re looking for a will attorney in San Diego, the Kam Law Firm would be happy to help you.
2. Identify The People That Will Be Your Beneficiaries
The second step in how to make a will is to identify the people you want to inherit your money and assets. Your heirs will be listed in your will as your beneficiaries. It’s important that your list of beneficiaries are kept up to date. If you’ve created a will in the past, it’s possible that your list of beneficiaries will need to change or be updated to include new family members.
3. Choose the Executor With the Attorney’s Help
The executor of your estate is the person listed in your will who will execute upon your wishes. Your executor will distribute your assets as you’ve designated in your will. When thinking about how to make a will, you will need to consider who will fill the role of executor.
A will attorney can help you to choose who your executor should be. Typically, a probate attorney, particularly a probate litigation attorney, can tell you based on family dynamics who will and who will not be a good fit.
4. Do You Have Kids? You Can Choose a Guardian
A major consideration when creating your will is what will happen to your dependents upon your death. If you have children, pets, or other dependents you should nominate a guardian for them in your will. Before listing someone as a guardian for dependents, make sure to get their permission.
Consider choosing and listing in order three potential guardians for your dependents. This will ensure that your wishes are followed but that if someone listed isn’t able or has died, you have a backup. Realistically though, if you have minor children, you should be establishing a trust.
5. Define What Will Be Given For Whom and When
Your will is the place for you to state your wishes. If you’re wondering how to make a will, the most important advice we can give you is to be specific. If you’re vague or hope that your beneficiaries will “do the right thing,” it’s likely that your wishes won’t be followed.
Specific instruction on who will get what and when is especially important if you have a large family with complicated social ties, such as multiple marriages, children, and stepchildren.
6. Add Personalized Recommendations if You Want
Splitting your assets fairly and equally may seem easy in theory, but in practice, there are many complicating factors. Should your assets be sold and the money split between children? Grandchildren? Or, maybe each child get certain possessions. There are numerous ways to settle an estate.
We recommend that you discuss your wishes and will with your beneficiaries. You might be surprised to learn which assets are meaningful (or not) to your heirs. Giving your family time to speak up about what they might want will let you make an informed decision regarding the wishes you place in your will.
You can also make your will more personal by attaching a personalized letter that says goodbye or any final thoughts you might have.
7. Ask for the Attorney’s Help to Update the Will Frequently
In your process to make a will, you’re not finished once it’s written. Your will should be frequently updated to make sure it reflects any new assets you purchase and includes any new beneficiaries who may marry or be born into the family.
You can work with a local will attorney in San Diego to create or update a will if you need to.
8. Make Sure that the Attorney Has All the Important Information to Make a Valid Will
Writing your will is just one step of the process — you must also make sure that your family knows you have a will and where it is located. This is another step in which a local will attorney in San Diego can be helpful. You can leave a copy of your will with your attorney and one with your family members.
Many people also include asset location, important papers, and passwords with their will so upon their death all the important material is in one location.
Wills and Trusts: The Differences and Which One You Should Make
If you’re considering creating your will, you might also be considering a living trust. What’s the difference between wills and trusts? Which is right for you?
Whether a will or trust is right for your situation should be determined through a meeting with a local will attorney in San Diego. But, we can still go over the main differences here.
Everyone should have a will before they die. A will is simply a legal document stating your wishes upon your death, of your assets.
In addition to a will, some people choose to create a living trust. A trust is a contract that dictates how your assets should be managed upon your incapacity or death. You can continue to manage your assets during your life. The main difference between a will and a trust is that a will begins after your death while a trust is active as soon as it’s created and while you’re still alive. Additionally, a will must go through probate while a trust avoids court intervention. A trust also protects minor beneficiaries in a way that a will cannot.
What is the Average Cost of Making a Will?
The average cost of making a will is between $500 and $800. If you are interested in how to make a will, you can begin a FREE consultation with the best will attorney in San Diego at Kam Law Firm today.
If you need, here’s a checklist on how to make a will so you know you’ve followed all the steps:
- Choose a qualified will attorney near you
- Identify the people that will be your beneficiaries
- Choose the executor with the attorney’s help
- Do you have kids? You can nominate a guardian
- Define what will be given to whom and when
- Add personalized recommendations if you want
- Ask for the attorney’s help to update the will frequently
- Make sure that the attorney has all the important information to make a valid will
* Nothing in this article should be construed as legal advice. There are additional legal requirements for creating a will. The information included herein is offered to provide a high-level view of what you should be thinking about before you go see a licensed attorney in your state.