How to Create a Will: A Guide to Get Started with Making a Will

It’s Halloween — time for a scary, morbid subject.

Young adults don’t think about wills. The typical person graduates from college, gets a job, marries his sweetheart, has children, and never considers a will until he turns fifty. But not everyone lives to be fifty. You can’t always see death coming. A will is for anyone with money and possessions that need to be distributed according to some plan.

A Lifehacker reader recently asked about drafting a will:

I’m 31, single, and do not have a will. Obviously my family doesn’t know the details of my finances. Do you know an inexpensive way to create a will and do you have any tips for being prepared for such an eventuality? (i.e. record of finances, power of attorney, etc.)

Lifehacker readers provided a variety of answers. One recommended, which bills itself as “the leading online legal service center. We can help you take care of common legal matters — without an attorney.” Another recommended Wills Online and Lectlaw.

But another wrote:

Forms purchased over the internet? Be aware that probate law varies a great deal from state to state and from year to year, and forms do not necessarily reflect this. Moreover, I have been astonished by the low quality of some of the forms that I have seen people find over the internet or produce via software. A simple will from a reputably attorney who wants to keep his bar license is cheaper than you might think. If you have enough stuff that you need a will, you can afford a simple will from an attorney.

(Read the complete Lifehacker discussion for more extensive discussion.)

Why worry about a will?

“The importance of an up-to-date will cannot be overstated,” writes David Chilton in The Wealthy Barber. Wills give clear, legal instructions regarding your intentions. Verbally expressing your wishes isn’t enough. A will is crucial even for those with modest assets.

For more information, I contacted David L. Carlson, an attorney from Salem, Oregon. Carlson answered the following questions.

Is drafting a will difficult?

Most wills are routine. Assuming a person has children only by their spouse and, they’re still married to that same spouse, there are usually very few problems. Couples with minor children may want to designate a specific guardian. If there are specific family heirlooms that you want to go to a particular family member, the will is the best place to do that.

For more complex family situations (multiple marriages, multiple children by multiple partners, mixed families, etc), the need for a will increases significantly. Being clear in your will about what you want to have happen to specific property, and what you want to do for specific people, can serve to significantly reduce hardships and hard feelings. It can also ensure that specific needs are covered.

Do I need a lawyer to do this?

Yes. You need a lawyer for this, if only because she is thinking of things from an outside perspective, and will ensure that things are done properly. Nothing is worse than thinking your will is valid and then having your family find out after the fact that it isn’t valid because it wasn’t properly created/drafted and witnessed.

In addition, people often make incorrect assumptions about what will happen to their property when they pass. For example, a person’s retirement account — frequently their single most valuable asset after their home — is generally not governed by a will. The distribution of those assets are covered by a completely different set of rules. However, if you make your estate plan on your own, and haven’t considered the other forms of distribution for an asset, you may be making a tremendous mistake.

Another common mistake that people make is forgetting to change their beneficiary designation on their retirement accounts after their divorce. This results in significant litigation each year, especially if the deceased remarried and the new spouse wants a part of the retirement account (which is still payable to the ex-spouse).

In addition, certain self-help probate avoidance schemes can seriously damage your family and their potential tax situation. Having a lawyer assist you should avoid those problems.

How do I approach a lawyer about creating a will?

Just ask one. Call a lawyer and say you’re interested in planning your estate — say that you need more information. The lawyer will want concrete information about who you are, your assets, and your concerns. The more organized you are, the better the process will be. If you want to know how much it costs, ask. Some lawyers are uncomfortable talking about fees because it’s the least popular topic for both lawyer and client (usually because the client thinks it’s too much). That shouldn’t stop you from asking.

For many reasons, I usually wait until near the end of the initial client interview to discuss fees. Most people are uncomfortable asking about how much things cost, and don’t want to talk about it until after they’ve explained their situation. As the person listening, I want them to be as comfortable as possible, so that they know I understand their situation. In most cases, my fees won’t change between the beginning of the meeting and the end.

What will this cost me?

Cost is usually insignificant for those who are truly interested in a will. My fee for husband-and-wife mirror wills is usually $300. If someone needs tax planning or something similar (a trust, for example), the cost can be greater. An attorney can estimate this cost after an initial interview.

Anything else I should know?

Making a will isn’t about walking away from your lawyer’s office with a document in hand. It’s a process of evaluating your estate and planning for its distribution. That process is eased when you have the guidance of someone who knows the system, and who is comfortable enough with it to advise you and to answer your questions.

(Note: Yesterday, Udandi & the Craft of Money looked at the Bogleheads chapter on estate planning.)

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