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Now is the time to write your will, and there are a few ways to do it

Posted on December 15, 2020

Don't think of writing a will as morbid. Think of it as an act of love for the people you care about.

We are all going to die someday, but most of us don't like to think about that. A recent survey by and YouGov found that more than 30% of people don't have any estate planning documents, such as a will or trust.

I feel lucky that I just happened to have gotten around to updating my (very out-of-date) estate planning documents a few weeks before the Bay Area went into self-quarantine. I was able to get new documents drafted by my attorney. If I hadn't done that, I would be scrambling to write my own will and advance healthcare directive right now. You should, too.

The COVID-19 pandemic reminds us of the fragility of life. This is good time to put your last wishes down in writing, if you haven't already done so. Don't think of writing a will as morbid. Think of it as an act of love for the people you care about. Do it now, while you feel good.

First, fill out an advance healthcare directive and give it to your doctor and your agents

An advance directive is a form that allows you to record your wishes for emergency treatment. You can designate who gets to make healthcare decisions for you if you aren't able to make them yourself. You can also indicate whether or not you want a do not resuscitate order, or DNR, and what end-of-life care options you want.

If you don't have an advance directive, your spouse, parent, or child, will be called on to answer your doctor's questions when you can't speak for yourself. A healthcare directive is particularly helpful if you don't have close family nearby because you can designate a friend to make decisions for you.

Be sure and use a form that's valid in the state where you live. AARP has a reference page with links to free advance directive forms for all 50 states.

Who needs a will?

If you die without a will, your property passes to your closest legal heir or heirs. This is called intestate succession, and the rules that govern this in your state determine who gets what portion of your assets. Your heirs are your family members, such as a spouse, children, parents, or siblings.

Each state has its own rules for intestate succession. If you want your assets to pass to your heirs-at-law, writing a will may be a less urgent project. To give bequests to charities, friends, or more distant relatives, you should write a will. In addition, if you specifically want to disinherit a close family member, you need to write a will to do that.

If most of your assets are in accounts where you have designated beneficiaries, such as life insurance or an IRA or 401(k), you may not need a will. Those accounts will automatically pass to your beneficiaries, not your heirs. Now is a good time to check your beneficiary designations and make sure they reflect your current wishes.

In addition, assets that you co-own, such as joint bank accounts or your home, may pass automatically to your co-owner on your death, no will needed.

If you don't have a lot of assets, it might seem pointless to write a will. However, families have been known to fight just as bitterly over small amounts of property as large estates. It's never a bad idea to write your will.

Some dos and don'ts for writing your own will

Once you decide to write out your will, your next step is to make sure that it's valid and enforceable. If your will is not in a form recognized by your state, your family and friends may decide to honor your wishes anyway, but they don't have to. A little bit of care will ensure your will holds up in court, if it comes to that.

Here are some tips to help you write your own will.

  • Don't use a form off the internet that claims to be good in all 50 states. The rules governing wills are different from state to state. Nolo is a good DIY resource for wills and other legal documents. Research how to write a will in your state and follow the rules.
  • Do print out your will. In most cases, you need to print out and sign your will. An electronic will may be too easy for someone else to alter. Keep your will in a safe place and let your executor know that it exists.
  • Don't include assets that have designated beneficiaries. You can make gifts in your will by percentage (i.e. half of everything to each of your two children). Or you can make specific bequests (i.e. your porcelain doll collection goes to your cousin Margery, $1,000 to your favorite charity). But you can't give away your insurance or retirement accounts, since those already have designated beneficiaries.
  • Do make sure that your will is properly witnessed. Check the witness requirements set by your state and follow them or write your will by hand. This is important. Read on for more on witnessing your estate planning documents.

A final but crucial step: Witnessing estate planning documents

Under normal circumstances, you need witnesses for your advance healthcare directive and your will. You'll need one or two witnesses and/or notarization for these documents. Requirements vary by state.

In all cases, your witnesses can't be someone named as your healthcare agent or as a beneficiary or executor in your will. However, you don't need to break quarantine to get a witness. There are a couple of possible workarounds.

In some states, you can get your documents notarized remotely. The National Notary Association has a compendium of remote notarization laws. In addition, some states have made emergency declarations that allow notaries to work remotely during stay-at-home orders.

In addition, at least 27 states allow holographic wills. A holographic will is a handwritten will with no witnesses or notarization. You have to write out the whole document in your own writing. The rules for holographic wills vary by state, so check the requirements for your state before you create your will this way.

A will and an advance directive just scratch the surface of your estate planning options. If you have significant assets, such as a home, it's a good idea to see an attorney to get advice on the best estate plan for your family. In the meantime, put your last wishes in writing now.

We offer digital services that take the guesswork out of estate planning.