Will Walk-Through: Understanding Parts of a Will

From keeping track of favorite snacks (strawberry applesauce is in, string cheese is out) to picking out winter coats and scheduling haircuts, you’re busy working to give your family everything they need. One essential way you provide for your family is by making sure you have an up-to-date will.

Your will is your main tool to leave instructions for how to handle your property and choose people to care for your children if you’re not around. Understanding the common parts of a will can make it easier to include instructions that reflect your wishes.

Do You Really Need a Will?

When you pass away, your estate goes through a legal process called probate, which handles executing a will, distributing property and paying any applicable taxes. A probate court helps ensure that your estate is distributed according to your wishes or, if you don’t have a will, according to state law.

Probate can be a lengthy process and can get expensive between attorney fees, probate fees and even parking for court dates.

Not all of your possessions and assets will need to go through probate. Payable-on-death (POD) or transfer-on-death (TOD) accounts and property can bypass probate and go straight to a beneficiary.

That leads some people to wonder, can you get away without taking the extra trouble to make a will?

It’s still a good idea to write a will, even if you think your estate is super straightforward. For one, if you die intestate (meaning, without a will) the court has to get involved to name an estate administrator, take a full inventory of your estate and possibly track down your potential heirs. It’s challenging to give a clear timeline for probate with or without a will because various factors can affect the process. Theoretically, if someone leaves a will but their children dispute it and kick off a legal battle, the whole probate process might extend longer than someone with no will but a single heir (e.g., a surviving spouse). That said, a general consensus seems to be that having a will typically makes probate smoother than dying without one.

Additionally, while POD accounts are convenient, they may not have the nuance to take more complex wishes into account (e.g., if you want to leave an account to your grandchildren, including any who are not born yet). A will can hold important personal instructions, too, such as your preference for your child’s guardian.

Parts of a Will

There’s no single format for a will. State laws and individual needs vary, so it’s important to treat preparing your will carefully. This will help make sure your will is legally binding and that it presents your instructions clearly.

Introduction

This is also sometimes called the title, preamble or introductory clause. It can be a fairly simple statement that this document is your last will and testament. Typically, you’ll include personal details like your full name and address, and you’d formally revoke any previous wills. The probate court uses this section to validate that this is the correct will to use for your estate.

Sometimes, a will-making tool online or an estate attorney may ask you to complete a separate section called a declaration, which asserts that you’re of sound mind and aren’t making the will under duress.

Executor appointment

The executor is the person in charge of carrying out the instructions in the will. Executors may have to notify creditors of your death, secure property (e.g., lock up your house), settle debts out of the estate and give property to the right beneficiaries. You can name a family member or a professional such as your attorney. Executors may be entitled to reasonable compensation, with details set by state law.

Debts

In some cases, it might be helpful to specify in the will that your executor should pay your funeral costs, final health expenses and enforceable, unsecured debts out of the estate before distributing assets to your loved ones. It’s a smart idea to consult with a qualified legal professional to see which clauses are most important to include in your situation.

An estate planning attorney with expertise in your state can help you determine which clauses to keep or avoid in your will.

Guardian designation

As a parent, you want to protect and provide for your children. Nominating a guardian in your will is an important step to help make sure your kids grow up with someone you trust. If your kids’ other parent survives you, they’ll typically get custody unless there’s some legal issue preventing this. Step-parents may not have custody rights, although they can petition the court and a judge will decide what is in the best interests of the child.

When you name a potential guardian in your will, consider their relationship to you and your child, their values and whether they’d be able to take on the responsibility of raising your child. Don’t forget to talk to your loved one, too! You’ll feel more at ease if they agree to you naming them as a guardian. The court system is not legally required to place your children with the guardian you name (the best interests of the child come first) but in many cases, a court will try to honor instructions in a will.

Bequests

This is the part where you specify which belongings go to which beneficiary. You can leave your property in a few ways:

• Specific gifts: Clear language matters here. “I leave my diamond engagement ring to my sister, Jane Doe” is much less likely to cause confusion and trouble than “I leave my ring to my sister.”

• Contingent gifts: You can use your will to write back-up plans. If your cousin can’t inherit your piano because she’s living in a studio apartment, you can name someone else to take it instead.

• Charitable bequests: You can leave a certain dollar amount or percentage of your estate to a charity you support. You can also leave an entire account (e.g., an investment account, since you might not know what the exact value will be when you pass away) or set a charity as a contingent beneficiary.

• Residuary bequests: You don’t need to list out every last dollar, book and baseball card you own. Once you’ve made the specific gifts you care about, you can keep it simple by naming a residuary beneficiary to inherit everything that’s left.

Special instructions

An advantage of a will is you have room to explain instructions with more detail and nuance than a simple beneficiary designation on a TOD account. You might want to leave instructions to set up a trust for minor children to keep their inheritance safe. You may set special conditions around certain gifts (e.g., upon college graduation, staying in recovery from a substance use issue).

This can also be an opportunity to add special requests about your final arrangements (e.g., cremation vs. burial, songs you want in a memorial program) and instructions for your digital presence (e.g., message for social media followers, passwords to your accounts). Note that items like funeral preferences won’t be legally binding, but it can nonetheless help your family to understand your wishes, especially as they’re navigating the logistics through a fog of grief.

Simultaneous death clause

Some wills have a stipulation that any beneficiary who dies within a certain timeframe (e.g., within 30 days of your death) will be considered to have “predeceased” you. In other words, they’ll be taken out of consideration for your will. This can help prevent your gift from going through two probates—yours and the beneficiary’s—and possibly going to someone you don’t want to receive your property.

Signatures

You need to sign your will to make it valid. Most states also require at least two witnesses. In Louisiana, you also need to have a will notarized for it to be valid. Other states don’t require a notary, but you may choose to have your will notarized if you prefer.

How to Make a Will

A valid will is an essential document to help make sure the court system and your family follow your wishes when you pass away. If you don’t have a will yet, consider putting that at the top of your to-do list.

Ideally, you’ll work with an estate planning professional who can give you the legal insights to make sure your language is unambiguous and that your will is structured to prepare for unexpected circumstances. If making room in your schedule and budget for legal appointments is overwhelming, we get it—you can start by using a free tool like Fabric’s to create a legally binding will in a matter of minutes.

Writing a will is an important way to leave your legacy and make sure your loved ones are cared for the way you wanted. It can also take less time than making a pot of mac ‘n cheese. When you’re ready to get started, you can get help writing your will online.

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