A will can be fairly basic or complex based on assets.
Many people have questions about how to make a will, including whether consulting a lawyer is required. An individual's last will and testament is a legal document that divides assets if the individual dies. A last will and testament is a fairly basic document, but some situations can result in a more complicated will. For example, if the inherited property is valuable enough to be subjected to federal estate taxes, the will should address how those taxes will be paid. For same-sex couples who live in states that do not recognize domestic partnerships or same-sex marriage, it is very important to have a will in place if property or custody is to go to the surviving partner. When an individual dies without a will, state law determines who will receive the property and custody of children, making the situation very stressful for surviving family members.
According to Nolo, a basic last will and testament:
In most cases, young, healthy individuals who do not expect to owe an estate tax on their property need only a basic will; however, each family's situation varies, and if the individual has reason to believe the will may be contested, then a more complex document is likely needed. For example, children from a previous marriage may feel they have more right to the deceased assets than the surviving spouse. In order for the will to be legal, two witnesses must sign it ascertaining it was prepared in sound mind and not under constraint.
Any provisions in a will that are illegal cannot be enforced. An individual cannot leave money of which the deceased is a beneficiary, such as proceeds from a life insurance policy or pension plan. The deceased also cannot bequeath a partial share of property that is in under joint ownership. The deceased's share of the property is automatically given to the co-owner unless all owners of the property die at the same time. Gifts left in a will cannot legally be used to manipulate certain situations. For example, receipt of money cannot be contingent on the heir marrying, divorcing or making a religious change. The law does allow an individual to stipulate the completion of a task in order for the heir to receive the gift, such as completing school; however, this can create a burden for the executor who will be responsible for making sure the task is completed.
Even with the existence of a last will and testament, the distribution of property may require going through probate court. For example, California requires that property valued at over $100,000 go through probate. Probate can delay the distribution of assets for months, and the court fees are deducted from the inheritance.
It is not recommended that individuals include instructions for final arrangements in the will. Instead, family members or the executor of the estate should be made aware of desired funeral arrangements because a will may not be read until after the funeral.
In certain situations, the use of a lawyer is really unavoidable. People who have valuable assets should have a lawyer who specializes in estate law and trusts prepare the will. It is also best to consult an attorney if the assets will be held in trusts before they are gifted. A lawyer will also need to be consulted if the individual wishes to keep assets from those who have a legal right to them, such as a spouse and children. Additionally, someone who feels uncertain about how to prepare a will or has questions should seek legal advice.
Websites, software programs and do-it-yourself kits exist for creating a simple will without a lawyer's help. According to U.S. News & World Report, some of the options include:
When writing a do-it-yourself will, ConsumerAffairs.com recommends retyping the form so irrelevant information is not included. If this is impossible, then clauses that do not apply to the situation should be redacted. If language is added, the individual should initial the additional information. It is important to recognize that these do-it-yourself forms are just as legally binding as a will prepared by a lawyer, and they should not be signed unless the individual fully understands all of the language within the document. Finally, it is advisable to have a lawyer review the document after it has been prepared.