Preparing for the biggest "what if": Steps to writing your will

While writing your will might strike you as a morbid task, it’s nevertheless a crucial one. Putting your affairs in order is a significant project, but after it’s done, you’re guaranteed to feel a weight off your shoulders. Besides, you can take this as an opportunity to reframe your thinking. Creating a will calms your mind, sets things in motion to make it easier for your loved ones if you pass, and keeps complications like probate out of the mix.

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Disclaimer: This article has been written for educational purposes only by Park Slope Parents. It is not intended to be legal advice, and it should not be construed as such or relied upon. The article may contain errors, inaccuracies and/or omissions. You should always consult an attorney admitted to practice in your jurisdiction for specific advice.

 

Why you need a will

Here are some key points on why you should stop procrastinating and get that will written!

  • If you don’t write one, the state will figure out your estate and affairs for you. This process takes time and very well may not be what you want.
  • A will is the only way you can designate a guardian for your children. Again, not assigning a guardian means the state decides that.
  • A will may also allow you to set up a trust for the benefit of children, young adults, and others who might not be able to responsibly manage large sums of money.

By planning sooner rather than later, you ensure that things will not be left up to people who don’t know your wishes. Remember, you can always change your mind in future.

  • Having a will in place allows you to express your wishes regarding the disposition of your assets rather than having New York State make the decisions for you.
  • Early planning allows you and your family to avoid making decisions in a crisis situation.
  • You select the guardian for your children and avoid any dissent between family members.
  • If circumstances in your life or your relationship change, your will and any trusts that you establish now can be changed easily. For example, you may leave a baby with different guardians than you would older children.

Now that you’re convinced, let’s move on to...

 

Step 1: Pick your method

A will is not something you want to take chances with, and hiring an attorney can help you ensure that everything is in tip-top shape. While some people successfully complete their will using online providers, if you’re planning for guardianship for your most beloved children, using a lawyer may save you from hassles down the road. For more insight, check out this article on The Problems With Do-It-Yourself Online Wills.

If you want to go the at-home software route, do your research online to determine which program is best for your needs. This ConsumersAdvocate piece on “Best Last Will and Testament Online Providers” is a good starting place.

Here are some thoughts from PSP members on the software-versus-attorney question:

  • “I'd strongly suggest you not do this yourself. The problem with mistakes in wills (and estate documents) is they don't reveal themselves until it is too late to fix them (the party is dead so you can't ask them what they intended).”
  • “These are your wills and planning docs—I hired a local attorney to do these docs for my family and you really should too. I have used LegalZoom for things that could potentially be corrected later.”
  • “My suggestion (if money is the issue) is to use a template from online and fill in all of your information—then ask an attorney to review what you have done. This will mean the attorney will spend less time on it (as they charge by the hour). When you go to the attorney to bring them your draft will, ask them for a quote up front (i.e. how much will you charge me to review and update my will?) Usually you can bargain a flat rate (instead of hourly).
  • “Do yourself and your child a big favor—make sure your will has a ‘living will’ provision which addresses how to deal with a situation where you or your [partner] (or both of you) are on life support."
  • “We used LegalZoom when we had our first but when we had our second and then went to an attorney, he pointed out a whole bunch of flaws with the LegalZoom document. (For example, it didn't say that the Will should be fit for current and subsequent children, which is apparently standard language.)”
  • “You don't need a lawyer to create a binding Will; you need a document signed by the testator, two signing witnesses and a Notary to witness the signatures. You don't even actually need a notary but it makes things easier later because the Notary substitutes for the need to have the witnesses produce affidavits for probate.”

Some PSP members also recommend a trust over—or in addition to—a will. While a will goes into effect only after you die, a trust is effective immediately upon creation. For more, read “Understanding the Differences Between a Will and a Trust” and consider fellow parents’ thoughts below.

  • “Creating a trust...is not merely a way of managing your assets after your death, it creates a quasi-corporation that owns them in life. The establishment and dissolution of a trust are not nearly as simple or inexpensive as signing a will.”
  • “With a trust, you can specify limits on how much can be withdrawn, name a trustee to manage and disburse the assets (not the same person/people who have physical custody) and schedule ages or accomplishments that trigger the child receiving the money—maybe $10,000 to buy a car at high school graduation, some percentage at age 18 or college graduation, some at 25, some at 30, etc. Or limit uses for the money—yes for medical school, no for starting an organic herb farm, etc.”

The bottom line is that a lawyer can help you with the unexpected specifications and details that come up during the planning process, while software will necessarily rely on a more inflexible template and won’t be able to think of everything. Things like having passwords to accounts that you need if someone passes ends up being super important—not just who gets grandma’s wedding ring.

Should you choose to seek help from a professional, be sure to check out reviews from PSP members in the Lawyers - Trusts, Estates & Wills category. And either way, keep an eye out on the PSP Events Calendar for our recurring Wills Workshops with trusted Park Slope lawyer Bill Cahill.

 

Step 2: Establish your wishes

First off, you’ll need to take stock of your assets. Make a list of your physical belongings (antiques, jewelry, property) as well as your intangibles (bank accounts, 401(k)s, life insurance policies). For the latter type of asset, you may already have beneficiaries listed, so double-check whether those stipulations trump the ones in your will.

Next, designate your beneficiaries: In other words, figure out what goes to whom. Also consider the “when”—that is, do you want to delay your child’s receipt of certain assets until they turn 18 or 21?

Once the who, what, and when is determined, you’ll need to select someone to carry out the wishes written in the will. That’s your executor. You can choose your bank or lawyer, or you can leave the task to a friend or family member, but make sure your executor is someone responsible and organized that you trust unconditionally to handle the nitty-gritty administrative details of your estate. Your executor will need to be comfortable with tasks like hiring a lawyer and selling your real estate and other belongings.

One key consideration that can cause friction between partners is guardianship: who you designate to raise your child in the event that you and your partner die. Don’t let this decision delay writing your will, though; PSP is here to help. It’s wise to have back-up options in the case that, for instance, the couple you select as guardians divorces or dies, or your chosen guardian is not in a position to take on the role at the time that it becomes relevant.

Here are some general thoughts on guardianship from PSP members:

  • Guardians don’t have to be actual family members. As author Richard Bach says, “The bond that links your true family is not one of blood, but of respect and joy in each other's life.”
  • You don’t have to announce to the world the guardians you chose. You don't owe anyone an explanation for your choice, and it can just open up a bunch of unnecessary hurt feelings.
  • Don’t take it personally if someone declines to be a guardian. “It takes a lot of self-awareness and concern for the best interests of a child to say no to such a request if someone knows they couldn't handle it.”
  • The guardian and the executor can be two different people. If you name two people, it’s best that they are not at odds with each other.
  • Think about what’s important to you when choosing a guardian. “The things I considered in making my choice were: continued access to my extended family, so someone geographically close; someone who would love and support my son through loss; someone who shares my values, if not my exact parenting style; but mostly just that he would be cared for.”
  • Think carefully if you’re choosing a guardian in another country (with possibly a different language). “You risk becoming subject to the laws of that country in administering the guardianship, and that your child, who has grown up here, will wind up in a completely unfamiliar place after experiencing a devastating loss.”
  • Naming a guardian is always better than not naming a guardian. Allowing the state to handle it will mean a stay in foster care, and it may lead to a dispute between families.
  • Your guardian’s financial situation doesn’t need to come into play. You should have adequate life insurance to cover expenses. If you don’t have adequate coverage, get more. “Part of what makes [the guardian] choice easier (and makes it easier for the potential guardian) is if the financial needs of your child will be taken care of.”
  • Consider the age of potential guardians. “Attorneys usually advise against choosing guardians that are much older than you for obvious reasons.” However, very young guardians may not have the maturity or experience to raise children.
  • Don’t procrastinate over guardianship. “You will feel such relief when you get the paperwork in order—it's definitely worth the hard conversations it can take to get there.”

Set a date to decide on a guardian. Consider how you’d feel if half your money was gone and someone in your family was taking care of your kids. If you’re okay with that, procrastinating about your will might be fine.

You’ll also want to think about adding a healthcare proxy, also known as a living will, in which you grant an individual the authority to make medical decisions for you in the event that you are unable to do so. Needless to say, you should select someone who is willing and able to carry out your wishes (e.g., their religious views do not conflict with the way you want decisions to be handled), and you should consult with them before writing down their name. As with guardianship, it’s wise to designate one or more back-ups.

Similar to the healthcare proxy—but with a broader purview beyond just medical decisions—is power of attorney, which specifies who can act on your behalf in legal or business affairs while you are still alive.

 

Step 3: Handle costs and special considerations

There is no one-size-fits all template for a will; each one is a unique document, built around the specific considerations relevant to your assets, family situation, and preferences. Here are a few areas that you may or may not need to take into account when drafting your will.

  • If you and/or your partner hail from a country outside of the U.S., you’ll need to consider any assets that may be housed there. Should you choose to hire a lawyer, think about whether it’s important to you to have someone from that country or someone who has specific knowledge of that country and the ins and outs of its legal system.
  • Similarly, if you wish to appoint a guardian who is overseas, special considerations will apply.

In terms of costs, it shouldn’t surprise you to hear that a will is not the place to cut financial corners. Should you choose to hire a lawyer, you might either pay a flat fee or be charged by the hour. Flat fees can range from $500–$2,000 per will depending on complexity.

Inquire with your employer to see if you can get a discount on will-writing services. As one PSP member suggests: “If you have open enrollment right now, you may want to see if your company offers a legal assistance benefit. It’s like $250 a year for me, and you are covered to use lawyers for all sorts of things, but I am using one for a will this year and not reupping the program for next year.”

 

Step 4: Keep it updated

A will should change to reflect the changing circumstances of your life. Maybe you’ve gained more assets. Maybe you’ve inherited a sum of money since you wrote your will, and a trust is a smart option. Perhaps the children are older, and your choice of guardian isn’t the best plan now. As the last step in your will-writing process, set a reminder to update your will and beneficiaries every two years—and then pat yourself on the back for your foresight in taking care of this daunting yet crucial task.

FINALLY...

Thinking through all of the details of a will can bring up lots of questions, emotions, and challenges. You may have thoughts about how you might die, how you want to be remembered, and what type of legacy you want to leave for your children. Set aside space and time—both emotional and logistical—to take on this task and to give it the mindfulness it deserves.

 

Further resources on Park Slope Parents:
Reviews for Lawyers - Trusts, Estates & Wills

Further resources on the web:
BoingBoing, “Get Your Shit Together: improve your life by planning for your death”
The New York Times, “In Using Software to Write a Will, a Lawyer Is Still Helpful”
Cake—Make your ending meaningful and easier on loved ones.
Five Wishes is an approach to discussing and documenting your care and comfort choices when you die. It’s more than a healthcare proxy or living will; it’s about your wishes during the end of life.