“Do I Need a Will?” An Ultimate Guide to Estate Planning

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As we navigate uncertain times, many of us are finding ourselves asking some hard questions about what will happen to our loved ones if the worst were to happen to us. If you're here, you've already taken an essential step to finding out what your options are to ensure that your loved ones are secure after you're no longer with them. 

With an alphabet soup of legal terms like guardians, executors, beneficiaries, and assets floating around, trying to figure out where to start by asking the simple question of “do I need a will?” can feel like an impossible task. 

Thankfully, this Law Office is here to help! This is your ultimate guide to wills; what they are, what they do, and how to create one that fits your needs. 

What is a Will?

Put simply, a will (more formally known as “a Last Will and Testament”) is a legal document that states your final wishes as to how your property (assets) will be distributed. If you have minor children, it also dictates who will care for them after your death. 

If I Don’t Have a Will, What Happens?

In the event of your death, if you do not have a will prepared, the distribution of your assets falls into the hands of judges or other state officials in the Probate Court. This is known as dying "intestate" and triggers the intestacy laws of whatever state you resided in to take effect. 

What does this mean for your family? Put simply; the courts will decide to divide your assets up to your immediate family based on the laws of that state. While this may seem "fair" on the surface, it can be devastating in practice. 

For example, if you have an unmarried partner or are in a state that does not recognize your domestic partnership, your nearest and dearest may not be entitled to any of your assets. Additionally, family members you would have otherwise not wanted to distribute your assets may lay claim to them under the intestacy laws. 

In short, it can become a legal nightmare for your loved ones, and many of your assets may not make it into the hands of those that need or deserve them the most. 

The Benefits of a Will

Now that we've talked about what happens if you don't have a will, let's talk about the benefits that a Will provides. When you have an executed Will at the time of your death, it ensures that:

·      Your assets are distributed among your loved ones according to your wishes;

·      Your children are taken care of by the guardians you have chosen for them instead of those appointed by the court; 

·      Your heirs and beneficiaries will have access to your assets faster and with fewer complications; 

·      You may save money on taxes, increasing the benefits you pass on to your loved ones. 

While it may be unpleasant to have to sit down and plan for what should happen after you die, the benefits of taking the time to create a Will far outweighs the time and effort of creating one. 

So, Who Needs a Will?

The short answer is nearly everyone. If you have assets and/or children, you'll need a Will to ensure that your wishes are carried out.

What is an asset? An asset is any real property or personal property of value. This can be a home, land, a timeshare, a bank account, an art collection, a car, and even that guitar in the corner that you swore you were going to learn to play one day. 

Chances are, if you’re over the age of 18, you have assets and you should ensure that those assets go to the people you choose. 

The Types of Wills (and Which One is Best for You).

There are five basic types of wills. Which one you may end up with depends on your personal circumstances but there is one that is more widely recognized than the others and generally provides the least confusion. 

Testamentary Wills

This is the most common and the most widely recognized type of will. This is a written Will that is signed in the presence of a Notary and witnesses. It can be prepared by you or with the assistance of an estate attorney and typically holds up the best to any challenges that may be brought against it. 

Other Types of Wills

While the testamentary will is typically the best course of action in most cases, there are other types of wills that may be executed in special circumstances. 

A holographic will is a handwritten or typed Will that is signed by the testator (the Will creator) but is not necessarily signed in the presence of witnesses. This type of will is often executed when time is of the essence, such as a sudden life-or-death accident and witnesses cannot be found. These are recognized in Maryland and the District of Columbia; however, they are not recognized in every state and can often be challenged and set aside. 

An oral will is a will that is spoken to the beneficiaries but not written down. These are not recognized in many states and are very often challenged. 

A Pour-Over Will is often created in conjunction with a trust and ensures that assets are automatically transferred to the trust in the event of your death. 

A Mutual Will is a will that is often created by a married or committed couple that binds one partner to the mutual will in the event of the other partner's death. This is often used to ensure that only the children of the deceased partner get access to their assets instead of their surviving spouse and should not be confused with joint wills. 

What Should Be Included in Your Will?

Now that you’re familiar with the types of wills and their benefits, it’s time to get started on yours. If you are looking to prepare it yourself, some templates and websites can assist you with creating a basic Will. Please understand however, the more complex your wishes or the value and location of your assets, the more you can benefit from using the expertise of an estates and trusts attorney who can guide you through the process and help you avoid common pitfalls. 

Some additional documents are often attached to your will. You should familiarize yourself with these and consider preparing these when you prepare your will.  

These are:

·      A Letter of Instruction: This identifies specific assets that are going to specific heirs. If you want your daughter and only your daughter to get your favorite tea set that would be indicated in the letter of instruction. It can also include instructions for your funeral, account information for your executor to make distribution easier, and any other final "instructions" you may want to make. 

·     Financial Power of Attorney: This is a document that gives a specific person the power to act on behalf of you in legal matters pertaining to finances and property property. This is often used in combination with a Living Will or Advance Directive. These are living documents which are available for any incapacity. Individuals with financial Power of Attorney can “step in your shoes” in regard to financial decision-making and therefore must be chosen wisely.

·     A Living Will or Advance (Medical) Directive: This is used if you are incapacitated due to illness or injury and communicate to medical professionals who should make medical decisions for you when you cannot and also direct the level of medical intervention with which you are comfortable should you face a terminal diagnosis. 

Once you’ve prepared your documents, you will need to find witnesses. These are adults who are not direct beneficiaries of the documents that they are witnessing the signing. Most states require two or more witnesses. Your witnesses will provide their signatures on all documents that need them. 

Some states also require your Will to be notarized, so check your local requirements. 

You will also need to name a Personal Representative, also referred to as an  Executor, of your Will. This will be a person who survives you who can ensure that the Will is carried out according to your wishes. This can be a spouse or other family member. You can also name two persons who can share the responsibility. 

Why Should I Hire an Attorney to Prepare My Will?

As we’ve mentioned before, some people may choose to prepare their own Will, but many decide to work with an experienced estate planning attorney. What are the benefits of hiring an attorney versus doing it yourself? 

·      Experience: A qualified attorney knows the “ins and outs” of the Will preparation process, which can save significant time and headaches.

·      Security: An experienced attorney will ensure that your Will is prepared properly and will stand up to any challenges that may occur once probate begins. 

·     Customization: Your attorney will work closely with you to ensure that your Will reflects all of your wishes and and can advise you on additional documents such as the Power of Attorney and whether a Revocable Living Trust would benefit you. This can maximize the benefits to your heirs and ensure that you're wishes are trully followed after you are gone. 

When you hire an estate planning attorney, you get an advocate who will help you every step of the way, from creating a plan to preparing your documents and locating a notary and, if you desire, even assisting in executing your wishes after you’re gone. Whether you’re creating a new Will or updating an existing Will, an estate planning attorney can help. 

At The Law Office of Dawn Trainor-Fogleman, , I am available to to help you plan for life’s most unexpected events. Call 240-498-5193 or fill out this convenient form for a FREE consultation to review your estate planning needs. With over 25 years of legal experience in the District of Columbia and Maryland, I am dedicated to making estate planning easy and affordable, so that everyone can enjoy peace of mind and security for their loved ones.