Say it in Your Will

My friend recently met with a lawyer and tells me she had a will and some other documents prepared. At first I thought that was crazy: she’s only 27 years old and by no means rich. But I got to thinking, maybe she’s on to something. I’m not yet 30 myself and engaged to be married. Should I have a will?– T.J., Boston, MA

May 27, 2010 - Answered by Gordon T

Gordon T's Answer:

It is estimated that only 30 percent of Americans have a will, and most of those are 50 or older. Maybe it’s easy to understand why younger people don’t go to the trouble: who wants to think about their own death? And if you don’t have a lot of money anyway, why bother?
Why is a will important at a younger age? A will can do far more than just say who gets your stuff when you die. In fact that may not be the most significant reason to have a will.
You’re engaged. Congratulations. If you have children, it is critically important to have a will.
It is the document you can use to say who will care for your minor children, that is, to appoint a guardian. It can name who will manage any inheritance left to your minor children, a property guardian. You can choose the same guardian to manage any assets you leave to your children or name someone different. Maybe your favorite aunt Gladys is the ideal caregiver, but you prefer uncle Joe to handle the checkbook. With a will, you, not the state, decide.
If you die without having a will, state law decides who gets your property, who takes care of the kids, and who administers your estate. It is important that your will be consistent with the laws of your state since state laws can vary significantly. Ten states (Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin, and in some circumstances an 11th, Alaska) have community property laws that automatically give half of the property acquired during the marriage to the spouse.
Same-sex couples usually do not fall under these laws, again depending on your state. A will can accommodate this and other special circumstances such as stepchildren and special-needs dependents. Otherwise these matters are determined by the court according to state law, and not according to your wishes.
Most states allow you to prepare a will without an attorney. It might be reasonable to do so, particularly if it is a simple will and there are no minor children, complex instructions or large amounts involved. This article should not be considered legal advice; it’s always a good idea to consult with your legal, tax, or investment adviser to review your own personal situation before making important financial decisions.
There are generally two basic requirements for a will to be valid: 1) it must be signed by two witnesses who will not inherit anything, and 2) you must sign and date it. It can help if it is notarized but that is usually not required. Some states have exceptions even to these basic rules. Check to be sure.
Although not mandatory, the safest way to prepare a will is to hire an attorney experienced in such matters and licensed to practice law in your state. This reduces the risk of making errors that could have unforeseen consequences. An attorney can help coordinate the will with such related matters as the beneficiary designations for your retirement accounts, life insurance and how your real estate is titled.
An attorney can also help prepare other related legal documents:
  • a power of attorney assigning someone authority to make legal and financial decisions on your behalf if you are incapacitated;
  • a living will with instructions about medical issues treatment, particularly end-of-life care, if you are unable to make these decisions yourself at that time; and
  • A health care power of attorney (or health-care proxy) assigning someone to make medical decisions on your behalf if you are unable to supervise your own health care.
An attorney can help you decide if you should set up one or more trusts in addition to a will. These things can get complicated!
An attorney can also keep the original copy of your will so it is easily found if needed. Make sure your closest relatives know who your lawyer is and that there is a will and other documents on file.
If you use an attorney to prepare a simple will the cost can vary considerably, but in general, you can expect to pay $150 to $250, more for each other document prepared. Many offer a flat fee for each type of document. Check with your benefits office to see if you are eligible to join a pre-paid attorney service, which could turn out to be less expensive.

Everyone should take the time to prepare a will — and the other documents above — even if they have little property. This modest effort on your part can ease some of the inevitable stress for the loved ones you leave behind at an unavoidably difficult time.

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