Why Do You Need a Will?

It’s important to have a will to ensure that your property goes to the people and organizations you choose. In addition, you need a will to take care of other essential tasks, such as naming a trusted person to carry out your instructions, choosing a guardian for young children, making sure your pets are cared for, and more.

You don’t have to have a will. However, if you don’t make one, state law will decide how your property is divided. This might not match your wishes and could make things harder for your loved ones.

What a Will Can Do

So how does a will work? Here are nine things a will can do for you.

1. Control What Happens to Your Property

The main purpose of a will is to state who gets your property after you die. You can name specific people or groups to receive certain items, or leave everything to one person. If you have a trust, you can leave property to it as well. You can also choose someone, called your residuary beneficiary, to receive anything left over. A will lets you create a plan that fits your needs.

You can also use your will to make sure that certain people don’t receive anything. For example, if you made large gifts of your property to just one of your children during your life, you can use your will to state your intention that they shouldn’t inherit anything when you die so that your other kids can benefit equally.

2. Name an Executor

One of the most important things to include in your will is the name of the person who will serve as your executor. The executor, also known as a personal representative in some states, ensures that the provisions in your will are carried out and your property is distributed as your will directs.

Your executor can be any adult you trust. Many people choose a spouse, family member, or friend. For larger estates, or if you don’t have someone in mind, you can name a bank or other financial institution. While you can name more than one person or institution to share the job, this is usually not recommended.

You should also name an alternate executor in case your first choice becomes unable or unwilling to serve.

3. Name a Guardian for Children

You can use your will to name a personal guardian to care for your minor children until they reach adulthood, in case there is no other legal parent to handle these duties. You may name the same guardian for all your children or different guardians for each child. You may also wish to explain your choices in your will.

If your children need a guardian after your death, a court will formally review your choice. Your choice will normally be approved unless the person or couple you name refuses to assume the responsibility or the court becomes convinced that your children would be better off in the care of someone else.

4. Name a Property Manager for Children

Property left to a young child—especially cash or other liquid assets—will usually have to be managed by an adult until the child turns 18. Often, it is wise to have an adult manage property left to minors until they are even older.

Property management involves safeguarding and managing the property for the young person's education, health care, and basic living needs; maintaining accurate records of these expenditures; and ensuring that income taxes are paid.

5. Ensure Care for Your Pets

Legally, you can’t leave property to your pet. But you can use your will to name a new owner for your pet and to leave money to that person, requesting that they use it to care for your pet. In most states, you can also create a "pet trust" to set up a legal obligation to care for your pet after you die.

6. Make a Plan for Digital Assets

These days, most people manage much of their lives online, including financial accounts, email, social media, personal websites, and other digital property. You’ll want to address digital accounts and online files in your will, directing your executor to handle them as you wish. Some states allow you to name a specific “digital executor” to take care of these matters. You may also want to check individual services and platforms. Some, like Facebook and Google, provide options you can set up in advance, such as naming one or more people to memorialize or delete your account.

7. Support Charities and Causes

You can leave money or property to your favorite organizations and causes in your will. Before doing so, contact each charity to share your plans. Some may have special requirements or ask you to use certain wording. Always use the charity’s official name, address, and tax ID number to prevent confusion.

8. Forgive Debts Owed to You

Another provision you may want to include in your will is debt forgiveness. You can use your will to relieve anyone who owes you money at your death from the responsibility of paying your survivors. All you need to do is specify the debts and the people who owe them, and state your intention to forgive the debt, including interest if you prefer.

9. Save Your Beneficiaries Time and Trouble

Most wills must go through probate, the legal process that governs the distribution of property and the closure of an estate. If you don’t have a will, this process can be complicated, time-consuming, and expensive. The court will choose your executor, usually called an estate administrator, and your property will be distributed under state law. The costs of estate administration will be taken from what your inheritors would have received.

Even with a will, probate can still be a time-consuming and costly process. You may also want to explore options for avoiding probate. For example, naming beneficiaries for your bank and retirement accounts is easy to do and can save your loved ones time and effort.

What a Will Cannot Do

What you can do in a will has limits. Trying to include things that aren’t allowed or just aren’t wise can create problems for your executor and family. Here are ten things you shouldn’t try to do in your will. If you’re unsure about any of these, talk to an estate planning lawyer.

1. Avoid Probate

As discussed just above, probate is the legal process that validates a will and governs the distribution of your property. If you make a will, your estate will almost certainly have to go through probate, though there may be streamlined procedures available for small estates.

2. Avoid Estate Tax

Your estate won’t owe federal estate tax or state inheritance tax unless it is very large, usually worth many millions of dollars. (The current federal estate tax exemption threshold is nearly $14 million for an individual and nearly $28 million for a married couple.) A will can’t prevent these kinds of taxes, but other strategies, such as certain types of trusts, can help.

3. Transfer Property Left By Other Methods

Your will can’t control property that’s covered by other legal agreements or contracts. This includes jointly owned property, retirement accounts, life insurance, payable-on-death (POD) or transfer-on-death (TOD) accounts, and property held in a trust. Before making your will, review your accounts and property records to see how each will be handled after your death.

4. Provide Funeral Instructions

Although you can include instructions for your final arrangements in your will, a significant drawback is that your will may not be found and read until days or even weeks after your death. To make things easier for your loved ones, it’s best to make your final arrangements in advance or write down separate, detailed instructions and share the location with them.

5. Disinherit Your Spouse

A spouse has the legal right to receive a portion of their spouse’s estate, regardless of what a will states. A spouse can be disinherited only if they agree in writing using a document outside the will, such as a prenuptial agreement, postnuptial agreement, or other waiver. The correct method depends on the circumstances and on state law.

6. Make Bequests With Unreasonable Conditions

You are legally allowed to put reasonable conditions on a gift made under your will. It’s common, for example, to state that a young person will receive property only when they reach a certain age. But your will cannot or should not make a gift conditional on things that are illegal, improper, or just overly complicated.

Rules for conditional gifts are different in each state, so talk to a lawyer if you’re thinking about including one. Even with good intentions, these gifts can be confusing and hard to manage. For example, if you leave $5,000 to John if he stops smoking, someone would have to keep checking on him and possibly take the money back if he starts again.

7. Control Property From Beyond the Grave

Usually, it’s best to let your beneficiary receive property right after your death. Setting up a will that gives property to one person for life and then to someone else later can be very complicated. If you want to do this, you’ll need help from a lawyer.

8 Leave Property to Your Pets

Animals aren't legally permitted to own property, so you can't use your will to make gifts to your pet. If you name your pet to receive property through your will, that gift will be void, and the intended gift and the pet will become part of your residuary estate.

However, as discussed above, you can use your will, or perhaps a trust, to name a new owner for your pet and leave money to that person for your pet’s care.

9. Explain the Reasons for Leaving Your Property

You can explain your gifts in your will, but it’s usually not a good idea. Adding explanations can make your will confusing. If you want your loved ones to understand your reasons, consider talking to them directly or writing a separate letter for them.

10. Provide Property Management for People with Special Needs

It is common to set up management for property that will pass to a beneficiary with a disability; however, a will is not the place to do so. Passing property directly to a person with special needs could affect that person's eligibility for government benefits. If your loved one already has such a trust, you can use your will to leave property to that trust.

Property You Should — and Shouldn’t — Include in Your Will

To summarize the discussion above, a will can state how property that goes through probate should be distributed. Property usually subject to probate includes:

• real estate that is not jointly owned
• bank, retirement, and investment accounts without named beneficiaries, and
• personal property, including cars, furniture, clothing, jewelry, and much more

Some property transfers automatically and shouldn’t be included in your will. This includes accounts with named beneficiaries, life insurance, jointly owned property, and assets in a trust. If you’re unsure how to leave a certain asset, look into it or ask a lawyer for advice.

Learn More About Wills

For more information about wills, see the following articles:

• Different Types of Wills
• How to Make a Will

You can find out more about making WillMaker’s will and living trust in WillMaker’s Legal Manual.