We get it: Nobody wants to contemplate his or her own mortality. And you may even feel that, in the context of death, questions about who gets which of your assets seem trivial. That might explain why numerous recent studies have found that only between 35% and 45% of Americans have a will.
But the fact is your loved ones will have to address those questions when you’re gone. And by executing a will and signing a couple other basic documents you can save them loads of aggravation and unnecessary expense — and grant them the ability to focus on their loss.
So to make this relatively painless, we’ll break it down into ten steps.
1. Understand why you need a will. A will lets you tell the world whom you want to get your assets. Die without one — which is known as dying “intestate” — and the state decides who gets what without regard to your wishes or your heirs’ needs. The laws about this process vary by state, but if you die and leave a spouse and kids, your assets will generally be split between your surviving mate and children. If you’re single with no children, then the state is likely to decide who among your blood relatives will inherit your estate.
Finally, making a will is especially important for people with young children, because wills are the best way to nominate guardianship of minors.
2. Take inventory and pick your team. Start by creating a comprehensive list of your assets, including investments, retirement savings, insurance policies, real estate or business interests, and collectible and sentimental items.
Then spend some time thinking about the following questions:
• Whom do you want to inherit your assets?
• Whom do you want to name as guardians for your children in the event that you and their other parent dies?
• Whom do you want responsible for executing your will?
• Whom do you want handling your financial affairs if you’re ever incapacitated?
• Whom do you want making medical decisions for you if you become unable to make them yourself?
3. Draft your will. If your finances and wishes are simple, you may find that you can craft a quick and inexpensive will using a Web-based legal document service such as LegalZoom.com or Nolo.com. Otherwise, you’ll want to hire an attorney to draw up a will and other documents for you. The cost of having an attorney draw up a basic estate plan can range from $500 to $2,000, and more if you determine together that you should create a trust. (More on that below.)
4. Name an executor. A will also allows you to name your executor, the person who will be in charge of distributing your property, filing tax returns on behalf of your estate, and processing claims from creditors. Your executor can be a friend or relative, or a professional like an accountant or lawyer, but it should be someone you trust and who is willing and able to take on the responsibility.
If you name a professional, the executor will be paid from assets in your estate. You should negotiate the amount or rate in advance; compensation can range from hourly fees to a percentage of your assets paid annually.
5. Assign power of attorney. No one is immune from the loss of mental clarity that may come with aging or from a health crisis. Granting someone you trust the power of attorney allows that person — known as your “agent” or “attorney in fact” — to pay bills, manage investments, or make key financial decisions if you are unable to do so. Your agent is empowered to sign your name and is obligated to be your fiduciary — meaning they must act in your best financial interest at all times and in accordance with your wishes.
There are different kinds of powers of attorney. “Durable” power of attorney goes into effect immediately. Instead, most people building an estate plan will want what’s often called a “springing” power of attorney, which only goes into effect under circumstances that you specify, the most typical being when you become incapacitated.
6. Create a living will. A living will (also known as an advance medical directive) is a statement of your wishes for the kind of life-sustaining medical intervention you want, or don’t want, in the event that you become terminally ill and unable to communicate.
Most states have statutes that define when a living will goes into effect, and that sometimes restrict the medical interventions. Your condition and the terms of your directive also will be subject to interpretation. But a patient’s wishes are taken very seriously, so an advance medical directive is one of the best ways to have a say in your medical care when you can’t otherwise express yourself.
7. Assign healthcare power of attorney. You increase your chances that your directives will be enforced if you have a trusted health-care agent — sometimes called a health-care proxy — advocating on your behalf. You can name such an agent by signing what’s known as a durable power of attorney for healthcare. Your health-care agent should be able to do three key things: understand important medical information regarding your treatment, handle the stress of making tough decisions, and keep your best interests and wishes in mind when making those decisions.
8. Update your will. Review your will about once every year. You’ll also want to update it after a major life change such a birth, death, or marriage, or if you buy some real estate or receive an inheritance. When you do this, also make sure your beneficiary designations on financial accounts, insurance policies and other assets are up-to-date and coordinated with your will.
9. Communicate with your heirs. Inheritance can be a loaded issue, so be sure to discuss your plans and expectations with your family and friends. The sooner and more distinctly you outline your intentions, the less chance there will be for disagreements when you’re gone.
10. Decide if you need a trust. Contrary to popular belief, trusts aren’t just for rich people. (Though if you do have significant assets, or young children, you’ll definitely want to think seriously about creating one.)
A trust is a legal structure that lets you put conditions on how and when your assets will be distributed upon your death. Placing assets into a trust may allow you to reduce your estate and gift taxes and to distribute assets to your heirs without the cost, delay and publicity of probate court, which administers wills. Some also offer greater protection of your assets from creditors and lawsuits. If these benefits sound appealing — and they should — you can learn more about trusts on the next stage of the road to wealth.