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Guide To Writing A Last Will & Testament

Creating a last will and testament is an important step in simplifying the legalities and paperwork required upon the death of a loved one. A last will and testament is a legal document that dictates what the deceased wants to happen to his/her assets and possessions upon their passing. A last will and testament simplifies the management of assets and possessions and avoids complications/disputes related to who inherits what.

If there is any complication to the management of your estate, you may want to hire an attorney for assistance in writing the will. However, a last will and testament can be a very straightforward process. In this case, you could write your own will and testament and avoid additional attorney fees by just having them review it and ensure it is legally sound. In order to do so, here is a guide to writing your own will and testament:

How will you write your will?

As previously mentioned, you have multiple options for how to write the will.

You could do it yourself and have a lawyer review it to ensure it complies with all the required local legalities.

You could have a lawyer write it with you. This will cost more but you have the assistance of a lawyer while doing so.

You can use online writing services that specialise in will and testament creation. You should still have a lawyer review the document to ensure it is complete.

Lawyer and client making a will

Clearly Identify yourself for the Will & Testament

Make sure the document is clearly referring to you and could not be mistaken for another person of the same name. This means adding unique identifiers such as date of birth, social security numbers, home address, driver’s licence number, national or provincial ID etc.

Make some declarations about the document as being your last will & testament, it is being made by you willingly and you are of sound mental health and of capacity to make this contract.

Identify this will as the current valid will & testament and that it nullifies any previous will created by you or by anyone for you, prior to this one.

To prevent challenges to the will, you need to state that you are of sound mind and not suffering from a mental ailment affecting your choices. You should state you understand the effects of the creation of the will. Additionally, it is highly beneficial to supply evidence to back up your statement such as a video testimony or a medical evaluation and refer to it in the will.

Further challenges to will typically include claims of will created under duress. To exclude this, you also need to declare that you are making the will free of undue influence or duress.

Family Details and Beneficiaries

Clarity in any contract is important. When referring to people in a will, you need to be sure that the person in question could not be mistaken for another person so providing specific details about that person is of utmost importance. Referring to family members should include their names, including middle names and date of birth, plus their relationship to you i.e. son, daughter, nephew, sister etc. When referring to the same person multiple times, use the same terminology each time or identify that person’s designation at the beginning e.g. “[wife’s name] hereafter referred to as my spouse”.

The same detail should be used when referring to non-family. Instead of referring to a relationship, you will need to provide other details such as neighbour (including address), work colleague (referring to your company name), include their middle names and date of birth if possible. 

Declare an Executor

An executor of the will ensures the wishes laid out in the will are followed. They distribute assets and property to the beneficiaries. If requested to in the will, they may pay for the funeral costs, outstanding taxes, debts, estate administrative expenses etc.

In order to do so, the executor needs to be empowered by the will to perform such duties. In the will, the named executor should be declared as being empowered as executor of the estate where specific tasks, such as those above, should be stated clearly.

An executor of a will is a significant responsibility. Choosing an executor should be done with some care. An ideal person would be organised and personable. It would be a benefit if they are legally minded. As a result, many people entrust a lawyer as the executor. This can create additional costs but can avoid any complications in the management of the estate such as sale of property. However, some wills are not complicated and an executor can simply be a trusted friend or family member.

It is recommended to have a secondary executor in the event where the primary executor is unable or unwilling to perform the task.


executor of a will shaking hands

Consider Your Assets

You should first identify the assets you can legally bequeath to another person i.e. sole ownership assets etc.

Once identified, list them in great detail so there is no uncertainty as to what/where they are.

If anything is divided among multiple beneficiaries, it should be expressed in percentages and make sure it all adds up to 100%. Avoid general terms like ‘family’ which have no defined limitations (unless previously specifically declared in the will).

It is important to include provisions for circumstances where your wishes cannot be upheld, such as a beneficiary’s death prior to the distribution of your assets. This is particularly important for a couple making a will where one or the other may die first. Circumstantial statements such as “should [X] survive me…, otherwise their share should pass to….]”. Without circumstantial provisions, shares that cannot be distributed as intended may go back into ‘the pot’.

Guardianship

Beyond assets and property, guardianship of children is often included in a will. If not included, guardians can be assigned in a default method so to avoid this, or ensure guardianship is specific, it is recommended to include this in a will if children are involved. 

bereaved lady hobby cycling in a park
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Conditional Beneficiary

You can optionally add conditional allocation of assets such as if someone is married or graduating University. 

Details About the Deceased

A will is not all about the beneficiaries. It also serves the person writing the will. Many take this opportunity to give a message to the beneficiaries after their death. As the will is read, it can be a nice final message to your loved ones.

Additional details can be added relating to how or where the deceased wishes to be buried, cremated etc. Even the inscription on a headstone can be declared. Any of these details can be whatever you wish.

Finalize the Will

As with any contract, a final will & testament is not worth anything without a signature. To improve the validity of the signature, it is necessary to sign in front of a witness and ideally, have the witnesses sign the document also. The witnesses can attest that you are of sound mind and willfully creating the will.

In addition, you (and your witnesses) should initial the bottom of each page to indicate each page was made by you and not added later.

signature on a will

Changes to the Will Following Completion

A will can be made at any age and thus, as time goes on, circumstances and assets can change. Changes can result in minor changes to the existing will or creation of a new will depending on their extent.

Minor changes can be accomplished using a codicil which is a separate document which refers to the original will & testament, facilitating the changes. It is recommended that the codicil is also signed by witnesses, ideally the same witnesses as the will as it is prone to scrutiny in the same way the will would be.

With substantial changes, it may be simpler to create a new will to ensure clarity of the instructions. Using a codicil for major changes can make the will unclear by referring back and forth between documents.

Storage of the Documents

There should be multiple copies of a will and testament to ensure disasters such as fire, do not destroy the only copy available. You should keep a copy in a home safe, a safety deposit box in a bank or attorney’s office. You should inform the executor where the will is located and optionally provide a copy to the executor. 

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A Final Will & Testament In Summary

When making a will, the most important points are clarity and specificity in the details plus the use of witnesses to acknowledge the instructions laid out in the will are being made by you and as per your wishes.

It is recommended to have an attorney help create or at least review any legal document including a will. Their experience will highlight any complications you may not see in the instructions in your will. They will also be able to tell you if any part of your will could easily be contested.

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