How to Make a Will
UPDATED: June 19, 2018
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A will is an official legal document detailing how to distribute your assets and care for your family when you die. The best means of ensuring the court fully understands and honors your intent is to ask an experienced estate planning attorney to draft a formal will and obtain your state’s required witness signatures.
There are many ways to make a mistake when preparing a will. The will could be contested, improper language could cause the will to fail completely or cause assets in your will to be given to the wrong party, or any number of other undesirable possibilites. However, while it is not recommended, it is possible to draft your own will.
Wills do require some legal jargon, so this article will take you step-by-step through each provision of the will and instruct you on what must be included.
Opening and Declaration to Your Will
The opening section of your will presents your identity and intent. This portion must have specific legal phrasing. An ideal opening and declaration will read, “I, (your name), a resident of (your city and state), declare this to be my will. I revoke all prior wills and codicils.”
Family and Guardianship Identification in the Will
This provision enumerates the members of your immediate family. Specifically, you spouse, children, and any other dependants under your care. This section should appear as:
First: Family and Guardian I am married to (your spouses name), referred to in this will as “my wife.” I have (number of children) children, all from this marriage, whose names and birthdays are:
Child number 1 Birthday
Child number 2 Birthday
Reference to “my children” or to “my child,” shall include children born later and children adopted by me. I have no deceased children (if you do have deceased children, list their names and birthdays here).
If my wife does not survive me, and it is necessary to appoint a guardian, I appoint (guardian’s full name) guardian of the person and estate of each such minor child. If for any reason (guardian’s full name) does not act as guardian, I appoint (backup guardian’s full name) as guardian of the person and estate of each such minor child.
Executor of the Will
An executor is the person in charge of distributing the assets to their described recipients. This section should appear as:
Second: Executor: The executor shall serve as follows:
A. Designation: I appoint (Name of executor, if you are married, it can be your spouse) as my executor. If for any reason she does not so act, I appoint (backup executor’s name). If for any reason executor 1 and 2 do not act, I appoint (second backup executor’s name) to act as my executor.
B. Bond waiver: No bond, surety, or other security shall be required of my executor. (I you do desire them to post a bond then place that instruction here. The bond is designed to cover any losses due to the negligence of the executor.
Disposition of Property by the Will
In this section, you can either generalize tangible and residue properties or specifically mention assets and who they go to. The following is strictly an example. The key provisions to always include in this section are giving the executor authority to sell and distribute assets as necessary and pay any debts and taxes.
Third: Disposition of Property I make the following gifts of property:
A. Tangible personal property: If my wife survives me by 30 days, I give her all my interest in our tangible personal property. If my wife does not survive me by 30 days, I give my personal property to my children, by right of representation, provided they survive me for that period. My executor shall consider their personal preferences in making the division. My executor has my permission to sell any of that property and distribute the proceeds to equalize the shares. My executor shall be excused for all tangible personal property once the child or guardian gives a written receipt for the distribution.
B. If my wife survives my by 30 days, I give her the residue of my estate. If my wife does not survive me by 30 days, I give the residue of my estate to my children by order of representation. If my children do not survive me by 30 days, I give the residue of my estate according to (you state’s) laws of distribution one-half as though I had died without a will and one-half as though my wife had died without a will.
C. Taxes from residue: All death taxes imposed because of my death, as well as interest and penalties on those taxes, whether on property passing under this will or otherwise, shall be paid by my executor from the residue of my estate.
This section is vital to ensure your executor does not need to ask the court’s permission before making the distributions. The wording of this section must be precise:
Fourth: Powers of Executor My executor shall have unrestricted powers, without court order, to settle my estate as this will provides. In addition, my executor shall have the following powers:
1. To make interim distributions of principal and income to those entitled to it.
2. To sell, exchange, mortgage, pledge, lease or assign any property belonging to my estate.
3. To continue operation of any business belonging to my estate.
4. To invest and reinvest any surplus money.
You and the witnesses must sign the will. The following wording should be placed into the will for you:
“I have signed my name to this instrument on (date), at (city and state).”
For the witnesses:
“We, the undersigned the witnesses, on (full date), sign our names to this instrument, being first duly sworn, and do hereby declare to the undersigned authority that the testator signs and executes this instrument as his last will and that he signs it willingly, and that each of us, in the presence and hearing of the testator, hereby signs this will as witness to the testator’s signing, and that to the best of our knowledge the testator is eighteen years of age or older, of sound mind, and under no constraint or undue influence.”
Each witness signs their name, prints their name, and gives their full address.