Every Parent Should Have a Will: Here's The Easiest Way to Make One
Less than one-third of Americans have a will, and the number drops even more for moms and dads despite the importance of this legal document. Here's why you should have one, plus how to write it and even create one for free.
Less than one-third of Americans—32 percent—have a will or another type of estate planning document. That’s a decrease of about 25 percent over the past three years, according to a nationwide survey of 2,400 adults conducted by Caring.com, an online resource for people taking care of aging parents, spouses, and other loved ones. A will is the most common type of document, but only 23.9 percent of survey respondents have one.
Denial is largely to blame: People don’t want to face the inevitable fact that they won’t be here forever. The Caring.com survey also found that some people simply don’t have the money or education needed to plan their estate.
Yet every parent should have a will. The coronavirus pandemic—and the uncertainties that came with it—might have put this idea into perspective for many Americans. "The costs of not having a will can be high, and they're not just monetary," says Todd L. Janower, an estate-planning attorney in Chicago. Keep reading to learn about the reasons to have a will, how to write your own will, and more.
Why Parents Should Have a Will
The most compelling reason to have a will is to be able to nominate a guardian for your children in the event of your death. Courts usually award custody to the surviving parent, but parents—especially single ones—must consider what will happen if their children are orphaned.
Even though you will probably agonize over whom to name, don't assume your choice is binding; legally, it's just a suggestion to the court in most states. But while the court will make the final decision, it's imperative that you make your preference known.
"Without it, the court won't know about your decision, and your dreaded in-laws may come in and take your children and raise them in a way you never wanted them raised," says Dennis Belcher, chairman-elect of the American Bar Association's Real Property, Probate and Trust Law section.
Another reason to have a will: If you die intestate—without one—state laws dictate how your property will be distributed. Most people assume their spouse will inherit the entire estate, even if no will exists. Instead, many states distribute part of an estate to the surviving spouse and divide the rest among the children.
"But the surviving spouse may need those assets to maintain his or her lifestyle," says Linda S. Whitton, a law professor at Valparaiso University in Valparaiso, Indiana. Even if you want half of your assets to go to your children, minors can't legally inherit money until they turn 18 (or 21 in some states). Meanwhile, the guardian—even if it is the spouse—must petition the court to use the funds for the child's support.
How to Write a Will
To draw up a will, you start by listing your assets and liabilities. Assets include real property such as houses and cars, as well as bank and retirement accounts, stocks, bonds, and life insurance. Liabilities are debts, including mortgages, loans, and credit-card balances.
In addition to naming a guardian for your child, you'll need to appoint an executor—a trusted person who will administer your estate according to the terms of your will. You'll need to name the beneficiaries who will inherit assets or personal possessions from your estate. You should also consider establishing a trust for your minor children so that an adult can manage their inheritance.
Most people choose to leave all of their assets to their spouse, with their children inheriting any remaining assets after the spouse's death, Belcher says. Jointly held assets, such as houses or bank accounts owned with another person, transfer directly to the co-owner. The same is true for beneficiary accounts, such as life insurance or retirement accounts.
"But people need a will even if everything is jointly owned," Belcher says. That’s because it can help speed and ensure a seamless transfer of your property and assets.
In the case of divorced parents, the remaining parent usually gets custody of the children (barring other circumstances, such as having a living step-parent who adopted them). Gifts left to spouses often become revoked after divorce as well. However, you should consider meeting with your former partner to develop a plan regarding inheritance and guardianship. An attorney can also help work out the details. If you're revising a will after divorce, check out this helpful guide from legal service Nolo.
How to Make a Will for Free
The coronavirus might prompt parents to draft a will sooner rather than later. If you’re worried about the cost of planning your estate, rest assured knowing that you don't always need to see an attorney—or pay expensive fees. Some websites offer free online will templates, and others provide services for very low cost. Reliable options include Legal Zoom, Rocket Lawyer, FreeWill.com, and Nolo’s Quicken WillMaker & Trust.
Oftentimes, these forms are so simple you can download them and fill them out yourself within minutes. One disadvantage, though, is they don't provide the eagle eye of an attorney to ensure you cross every last T. They might also require witnesses to be present to sign the will.
You can also write a will using an online legal-document service with paralegals—people trained to assist lawyers but not licensed to practice law. They can review the information you provide, although they do not offer legal advice. This staffing gives legal-document services an advantage over software programs, although they often cost more money.
When to See An Attorney
Although free virtual will services seem compelling, some forms—and some family situations—are complicated enough that you definitely should enlist professional help. Consult a lawyer if your assets, including your home, exceed $1 million; if you plan to disinherit anyone; or if you need legal advice.
You might also benefit from seeing an attorney in the following situations, according to Yana Feldman, an estate planning attorney based in Garden City, New York.
Your heirs are likely to fight amongst themselves.
People squabble about money, even small amounts of it. If you think your heirs will fight it out among themselves after your death, see an attorney to draw up a simple will, in which you will name an executor. A lawyer will be better able to understand how the money you leave will affect your heirs and how to arrange your estate to prevent any squabbling. The lawyer will also be able to help you choose the best executor; this should be the person who will be most able to divide up your assets and manage the inheritance without causing rancor among your heirs. If you don't draw up a will and your family wages a battle over your estate, the legal proceeding will be longer, more painful, and probably more costly than anyone would like.
You can’t decide how to divide your assets, or you want to make special provisions.
If you have specific wishes about how your estate should be handled after your death, see an attorney to draw up a will. For example, say you wanted to split your assets evenly between your three children, but one of them has a history of financial issues and can't be trusted with money. With a will, you could assign a trustee to manage the money for them, so they don’t squander it. Similarly, if you want to specify individual possessions (your grandmother's china should be passed on to your niece; your paintings should go to your second son, etc.), you should see an attorney to draw up a will.
You’re leaving an inheritance for a child with special needs.
If your child needs to be taken care of after you've passed away, and you plan to leave an inheritance, see an attorney who specializes in special needs. For example, leaving behind as large a sum as possible may seem like a good idea, but if your child depends on Medicaid or other government programs, getting an inheritance could actually disqualify them. Even if all you have is a life insurance policy, you should see an attorney to set up a special needs trust, which is too complicated to DIY. This will help you to provide for your child in the best way possible, even after you're gone.
You qualify for the estate tax.
The estate tax is levied on large estates after a person's death. Since 1977, less than 2 percent of the population each year has left estates large enough to be taxed; the federal estate tax currently applies to estates worth $11,580,000 or more (though not every state has an estate tax). If you'll be subject to state or federal estate taxes, speak to an attorney to organize your assets and ensure that your family and friends—rather than the government—will inherit as much as possible.