Most people don't think about making a will until they have children, get married or other major event happens in their life where they realize it's time to think about their future. If you don't have a will and are reading this, make one now. Knowing more about wills can help you start the process.
In every state, you can make a will by typing out your wishes and signing the document yourself, along with two witnesses. There are very few other requirements to make your will valid – you just need to be of sound mind and (in most states) at least 18 years old. Other than that, no official language or legalese is necessary. Just state your wishes clearly. You can use your formal will to distribute your property, name an executor, name guardians for children, and forgive debts.
About half of the states recognize handwritten wills, also called holographic wills. A holographic will must be in your own handwriting, and it doesn’t have to be witnessed. Although this might sound easier, holographic wills can cause problems after you die because the court will have to decipher and verify your handwriting. This can cause hassles for your family. Also, if you want to make a will of any significant length or complexity, it will be much easier to make a formal will on a computer, using software, or with a lawyer’s help.
That said, if you are in a pickle and need a will fast, by all means write your wishes down in a handwritten will. In many cases, a handwritten will is better than no will at all. However, if you have the means and opportunity, make a formal typed will – it will result in a more robust, precise, and easily probated document.
Oral wills are valid in just a few states and under very limited circumstances. They usually require a present of fear of death and they can be used only to distribute personal property. Oral wills are unusual and uncertain. If you are planning to make a will, do not plan to make an oral will on your death bed. Instead, take some time to make a formal will.
Joint and Mutual Wills
A joint will distributes the property of two or more people, usually a married couple. Joint wills determine what will happen to the couple’s property after one spouse dies, and also what will happen to the property after the second spouse dies. lthough it may seem convenient to a couple to make just one will, joint wills can cause problems for the surviving spouse because it ties up property and restricts what he or she can do with it, forever. For example, if a couple makes a joint will and the husband dies in his forties, the wife may live another 40 or more years but she will still be bound by the terms of the will made earlier in her life. Joint wills are best used (if at all) by couples who have children in common and who want to ensure that property will go to those kids (instead of a subsequent spouse or child). But there are better ways to do this, like using children’s trusts.
Instead of making a joint will, consider making mutual wills (also called reciprocal or mirror wills). Mutual wills are two separate wills that are close mirrors of each other. They allow couples to “leave everything to each other” and any number of other similar wishes, but because each person has his or her own will, he or she is free to change it as needed after the first spouse dies.
Conditional and Contingent Wills
Conditional wills only go into effect when a certain act or condition happens. This means something other than the person who wrote the will's death. This could be a future event not closely related to writing the will, such as attaining a certain age. In the movie "Brewster's Millions," Richard Pryor only inherited after spending millions to learn how to appreciate money. This is an extreme example, but strange conditions have been know to apply. You need a lawyer to draft this type of will.
A statutory will is one that contains standard terms provided by state law. These state laws were created to allow people to make their own standard will that will be easily recognized and probated. Statutory forms can normally made without a lawyer by using the state’s fill in the blank forms. A few states have mandatory provisions considered part of the statutory will. In these states, the standard terms are implied, even if they weren't explicitly written in the will.
If you’re in a pinch or have very simple wishes, a statutory will can work well for you. However, these wills are not very flexible and you may not be able to tailor them to your needs.
A codicil is an amendment to an existing will. You can use a codicil to add, delete, or change the terms of your will. Codicils are best for simple and few changes. The more changes you want to make -- or the more complicated your changes -- the more you should consider making an entirely new will, rather than relying on a codicil.
A codicil must be witnessed and signed just like the original will.
A Lawyer Can Help
While you can make your will yourself using good self-help products, if you have a complicated situation, if you want to impose controls on property after your death, or if you just want to have a professional take into account your individual circumstances, see an estate planning lawyer.
Questions for Your Attorney
- What happens if I die without a will?
- How do I create a codicil?
- Does my state offer a statutory will?