Writing a will is a daunting task to take on, and the numbers show that Americans often delay their estate planning—or avoid it altogether. A widely cited Caring.com survey from 2017 shows that only 42 percent of people in the U.S. have a will. And while 81 percent of people aged 72 or older had written a will, that number decreased sharply in younger age groups, with 64 percent of those ages 37 to 52 having not drawn up end-of-life plans.
Why you need a will
Experts working in the field of estate planning (a legal practice that includes wills along with other end of life and asset planning organization) often point to the unpleasant nature of wills to explain why so many people avoid writing them.
“Most people run from, and don’t want to think about, their own death,” Arthur Kovacs, a clinical psychologist, told the New York Times in an article covering those survey results.
Delaying estate planning may allow younger people to temporarily avoid the inevitable, but there are other reasons why people, young and old, tend to postpone putting their end-of-life plans in writing. Nearly half of the responders to the 2017 survey explained that they “just haven’t gotten around to it.” But the younger generation’s present economic insecurity also plays a role.
A person may assume that if he or she has very few assets, there is little reason to create a will. Still, this—according to many legal experts and bar associations—is a misconception. Wills don’t only deal with possessions, and the possessions they do deal might not necessarily be financially valuable: A will can help determine the guardianship of your children, advocate for certain medical treatments, assign a home for your pets, and choose who should receive your sentimental objects.
“You should designate someone to manage your assets and make health care and personal care decisions for you if you ever become unable to do so for yourself,” advises the State Bar of California. Determining who handles your medical care is one aspect of estate planning that is important regardless of your financial situation. “For many, such ‘life planning’ is the most important aspect of an estate plan.”
Children, as well, offer a compelling reason to make concrete plans in the event of your death.
“If you have minor children in a will, you can specify your preference as to who you would want to be the guardian if you’re not surviving, and that is given a great amount of credence by the court,” says Anthony Enea, an elder law attorney with Enea, Scanlan & Sirignano whose area of practice includes wills, trusts and estates. “If there’s ever an issue of who is going to be the guardian of a minor child, if there’s ever a dispute, the court would look at the wills of the parents, and the parents can then specify who they wanted. And that’s something that the court strongly takes into consideration.”
While most attorneys advise that anyone with children have a will, only 36 percent of people with children under age 18 replied in the survey that they had one in place. While courts aim to place children with appropriate care in the event of their parents’ death, the best way to control where that may be is through a will.
How to write a will
If you are one of the majority of adult Americans without a will and are now considering drafting one, there are resources to help you, as well as mistakes to be wary of. A will is meant to speak for you when you are no longer able to do so; if the will is written incorrectly, your plans may not be executed as they should. Here are some helpful things to keep in mind when writing a will.
Do seek out advice from a qualified attorney with experience in estate planning. An attorney’s advice can be helpful in making sure your will expresses what you need it to, no matter how simple or complex. While there are plenty of resources available online to help you draft a simple will, many people will run into problems attempting to do so without consulting with a professional.
“The best option is to have an attorney prepare the will because an attorney is experienced in preparing wills, has an understanding of the law and the process for the due execution of a will, and can ensure that the will meets all the requirements and the needs to be a proper will,” Enea says. When someone attempts to write the will independently, “usually they don’t execute the will with the due execution requirements: They don’t properly have the will executed, it’s not properly signed, dated, and witnessed. There are always a lot of problems with a will that’s done by a client by him or herself.”
Further, if you or your family has a large estate, the attorney you seek to draft your will should be up to date on current tax laws.
Do find a credible person to act as a witness. This person should not be a beneficiary, as that may cause a conflict of interest.
Don’t rely solely on a joint will between you and your spouse. Chances are you and your partner will pass away at different times, there will be items that aren’t jointly owned, and many states will not recognize joint wills.
Don’t leave your pets out of your will. Although you may see them as a family member, the law sees them as property.
Do make a plan for emergency and end-of-life care, also known as a living will. This will offer instruction about the type of medical care you’d like to receive. A living will provides doctors with instructions for how to treat you should you fall terminally ill or unconscious. Do Not Resuscitate orders, conversely, do not require a living will, and are primarily an agreement between a chronically ill person and his or her doctor.
Don’t create alternative copies of your will with “creative” elements added to it to dress up an otherwise bland legal document. Those additions could render your will invalid and not legally binding.
Do ensure that any person chosen as executor, power of attorney, witness, or other substantial role is willing and able to handle the responsibilities that come with these specific titles.
Don’t put off updating your will regularly. This can become an issue if a divorce, birth, or death occurs in the time since you first created your will, making for some potentially dramatic family spats. It’s especially important to update your will after life-changing events occur, or if your income and assets increase substantially.