6 Considerations When Drafting Your Will

In a 2019 survey from Caring.com about Wills and Trusts, the researchers found that while 76% of the respondents said that having a Will is important, only 40% reported actually having one.  

Drafting end-of-life documents is not easy. A Will requires you to think about your mortality and make difficult decisions about what you want done with your assets and if you have minor children, who will care for them if you pass away.

However, the importance of these documents cannot be overstated. A properly drafted and executed Will ensures that at death, your assets will be distributed according to your wishes and not by state law.  Below are six important considerations to make when drafting your Will.

1. Name an Executor

An Executor of a Will, sometimes called a personal representative, is the person in charge of handling your estate. The Executor will pay your debts and any taxes owed from the estate assets, and then distribute the remaining assets according to your Will. Your executor should be someone you trust to handle your assets in a responsible manner and carry out your last wishes. It is not a bad idea to go through your Will with your named executor to make sure they understand your preferences.

2. List Your Intended Beneficiaries

When drafting your Will, you need to specifically name the people you want to receive your assets. If you do not name these people, called “beneficiaries,” your property will be distributed according to state law. Generally, you can name anyone you would like to be a beneficiary of your Will, except for a person who is signing your Will as a witness.

3. Name a Guardian for Minor Children

For parents of minor children, one of the more difficult aspects of drafting a Will is deciding who will care for your children in the event you and your spouse both die or are unable to care for them. When deciding who you want to be a guardian of your minor children, take the time to think about who you trust to raise your children with similar values to your own. Consider sitting down with your proposed guardian to discuss your Will and how you would like your children to be cared for.

4. Consider Your Real Property

When drafting your Will, it is important to know what will happen with your real property (i.e., your real estate) once you die. Depending on how your real property is titled, your share could go to your spouse or another individual with whom you jointly hold the property. However, keep in mind that if your real property is in your Will and does not automatically transfer to another person, it will transfer to your heirs through the probate process in court. Because probate can be a long and expensive process, I often recommend putting real property in a Trust, rather than relying on a Will to distribute real property.

5. Make it Personal

Additionally, when drafting your Will, you can also include personal wishes. Pet owners can appoint a guardian and allocate funds for their beloved pets in a Will, you can make gifts to charitable organizations, set out your funeral and burial or cremation wishes, or appoint someone to handle your digital assets.

6. Keep it Updated

Drafting and executing your Will is a crucial step in planning for the inevitable. However, changes in your life such as the birth of children, marriage or divorce, changes in health or other personal relationships may affect how you want your assets distributed. It is important to revisit your Will from time to time and make sure that it still reflects your wishes after you die.

While these six considerations can help get you started, it is important to speak with an experienced estate planning attorney who can make sure your Will is properly drafted, executed and reflects your intentions.

 

Lauren Kaplan is an attorney at The Law Office of Kate Curler LLC in Chicago who focuses her practice on estate planning and elder law. If you have questions about Wills or other Estate Planning documents please contact Lauren at lkaplan@curlerlaw.com or (312) 952-1077 for a free consultation.