Almost everybody who’s just finished a divorce needs to execute a new will. If you didn’t have a will, you need one now. If you had one before, it’s probably out of date now. Here’s how to do it without spending an arm and a leg on lawyers.
Executing a will is the easiest thing in the world to put off. Nobody wants to think about their death. I know I sure don’t. But you really need to do it.
And you’ll feel so much better once it’s done. I bugged Sarah two or three times about her will. It was ready. She had paid for it. She just needed to sign it. But she kept putting it off. I finally just showed up at her office and insisted that she sign it.
She called me later and thanked me for being so pushy. “How come you didn’t tell me how relieved I would feel after this is done?” she asked. I didn’t think to tell Sarah how good it feels to have your will finished up. I’m telling you.
- Why do I need a will?
- Do I need a lawyer to prepare my will?
- Can I keep the children away from my exspouse?
- What do I do with my will?
- Do I need to think about estate taxes?
Why Do I Need a Will?
Don’t worry. If you die without having executed a will of your own, there’s already one written for you. Your state legislature has it all worked out.
In most states, about half of what you own goes to your spouse (even if you’ve been married only a day when you die), and the rest to your children. Whoever looks after your affairs (and your state has already worked out how they should fight about who that will be) will probably need to post a bond and report in regularly to the court. That usually means they’ll need to hire a lawyer.
The cost of the bond, the cost of the fight, the cost of the reporting, and the cost of the lawyer will of course all come out of whatever money you leave. Whatever’s left will (you hope) trickle down to your descendants or family.
You need a will so you can cut out all that extra cost. You need a will so you can decide who handles everything. And if you have children, you need a will to have any say in who looks after them after you’re gone.
Let me say this as clearly as I can:
Do I Need a Lawyer to Prepare My Will?
For the vast majority of us, our affairs are simple enough that we can buy one of those software programs like Quicken Willmaker and prepare our own will. Just make sure you make your will “self-proving” (meaning your executor won’t have to produce any witnesses to probate it after you’ve died). See the explanation below for the language you need.
For the benefit of lawyers everywhere, let me ask you a favor. If you choose to write your own will, please don’t then ask your lawyer to “look it over to make sure it’s okay.” Your lawyer probably already has a form for a simple will, and it would take much less of his or her time to prepare a will for you than to review a will you’ve prepared on somebody else’s form.
Can I Keep the Children Away from My Exspouse After I’m Gone?
It would be unusual for you to be able to do this. In most states, a natural parent enjoys a presumption that he or she is the better parent unless the party objecting can show the natural parent is unfit. If you’re convinced that your exspouse is genuinely unfit to be a parent, you better be prepared with some solid proof, and you better not poor-boy your will.
You need to use a lawyer who is skilled in both probate and domestic relations, who can counsel you on the proof you need to gather, the way to preserve it, and the way to word your will. You want your will to clarify that your reason for preferring someone other than your child’s parent is out of well-founded and reasoned concern for the child, not anger over a broken relationship with the child’s parent.
What Do I Do With My Will?
The original of your will is important. It’s much easier to prove the will in probate if you have the original. Proving a copy is a pain. The best place for the original of your will is a safe or safe deposit box. If you use a lawyer and the lawyer wants to hang on to it, that’s okay.
Wherever you store the original, here’s the most important step you can take to help your executor. Make several copies of the will. Give one copy to your executor, of course, as well as a copy to two or three friends or family members whom you trust. With each copy, include a note describing where the original is filed or stored. That way, even if nobody remembers where the original is, someone will be able to find his or her copy, and they’ll be able to use the information to help find the original. Your executor will be grateful, and your heirs will be richer.
Do I Need To Think About Estate Taxes?
Probably not. As a rough guide, estate taxes probably aren’t an issue unless your total estate at your death will exceed $600,000. And with the passage of the Tax Reform Act of 1997, that figure will rise gradually by 2006 to $1,000,000.
The one mistake I see people making here is to forget to include the value of their life insurance. If life insurance payable at your death would take your estate above that $600,000 threshold, you need to get some help. And don’t use just any lawyer. You really need an estate planning expert.
Expect to pay at least a couple of thousand dollars for a thorough estate planning package if you have simple affairs. It could run significantly higher if you have complex matters like a family-owned business, considerable wealth, or partnership interests. Don’t scrimp here. This is important. If you have a large estate, you need help with estate taxes.