What do you really know about a will ... specifically, yours? If you're like most people, you're aware of the concept and its intended function as a legal document: to dictate your wishes regarding disposition of your body and property upon your death.
And, like most other folks, perhaps you've occasionally thought about drafting one without knowing the finer details of how wills work or why they're important.
Myths and Misconceptions
It's true that most people have only a general idea of what a will is and what it's supposed to accomplish. There are a couple of reasons for that.
Wills aren't actively discussed in our society, for the most part. Death is still regarded as a taboo subject, so the average person doesn't volunteer much information about preparing for death, and employs "expect for the privacy or feelings of others" as an excuse not to raise the issue with them.
Also, wills are often portrayed inaccurately in movies and TV shows, which propagates stereotypes and misconceptions about them. So it's worthwhile to correct this and understand what wills actually do if you're going to create one for yourself and your household.
What You Need to Know (and Maybe Don't Already)
You should keep the following items in mind when you're ready to draft a will:
1. The law takes over if you don't have a will.
If you haven't formally devised a will, the inheritance laws in your state will kick in and divide your belongings accordingly. In most cases, this means your spouse and/or children will receive your assets, though extended relatives may come into the picture if no spouse or child is readily available or identifiable. If you have children and they have no other default guardian, the state may decide who is the best party to take care of them, whether a step-parent, your sibling, or your parents, if they're around.
2. Not all wills are valid.
You can't just write up your own document and expect it to be honored as a legally binding will. Often, there are a handful of requirements your will has to meet to be considered effective. For example, it must be written by a person who is 18 years of age or older, and is of "sound mind," and it must be clearly stated that the document is in fact a will. An executor must be named in the body of the document, along with any pertinent instructions for him or her; and in most cases, two witnesses are required to attest to the document's validity. (That means they have to sign it!) In cases where this is not possible, a handwritten "holographic" will might be considered a viable substitute.
3. Wills can be updated.
If you have to make a change to your will, you may make an addition known as a codicil, which allows you to revise any section of the main document that needs to be amended. However, if you require substantial changes to your document, it tends to be easier to revoke the existing will entirely and start the new one from scratch.
4. Wills can be damaged or lost.
This isn't common, but it happens, and there are laws in place to dictate what should happen when a will is lost or damaged. These will typically depend on local laws, which vary by city and state, but certain general principles apply almost everywhere. The biggest one is this: Courts will generally seek to determine the most likely wishes of the deceased, based on the circumstances. For example, if the deceased destroyed the will by hand while in a competent mental state, the will has most likely been rendered invalid. In the event that the will has been lost entirely (with no backup record of its contents), the court will treat the matter as if it did not exist.
5. It's possible to contest a will.
A will isn't a sacred, inviolable document; it can actually be quite fragile, depending on the circumstances. If someone believes that a will has been written by a person who was not of sound mind, if it was drafted fraudulently, or if it was the product of undue duress, its validity can be formally called into question.
6. Probate can be mitigated.
Probate is the term for a series of court procedures that govern the tying up of any loose ends in your estate once you die. It can be a costly and time-consuming process, especially for larger and more complicated estates, but that doesn't mean it's a necessary expense. If you plan your will carefully, and anticipate the concerns of a probate court, you can spare your family from much of the process. You may not be able to prevent it entirely, but a clear and detailed will most likely will minimize the agony.
Wills can be complicated documents. Even if you've cleared up your misconceptions and identified the main precepts of successful will development, there is still a chance you won't be prepared for everything.
It's a good idea to work with a qualified lawyer who specializes in wills and estates, and can help you identify any key areas you've neglected or assumptions you didn't know you had.