How Can I Write My Last Will & Testament?

How can I write my last Will & Testament legally, quickly and without spending a lot of money on legal fees?

Options to Write a Will & Testament

Will Template

The first and easiest option to write my last Will is to obtain a Will template from an online legal website. Perform an online search for Wills in your state or country. It may be possible to create a simple Will online for free. There will be a charge for some Wills depending on the complexity of the Will. After the Will is created, print it out, have it witnessed and store in a safe place at home.

Local Public Law Office

Another option to write my last Will is to visit your local public Law Office (Public Trustee UK, Public Trustee Australia, etc.) and have a Will made for you. Usually, they will create your will free of charge as long as you agree to name the organization, in your will, to act as executor/trustee to your estate when you die. Note that they charge considerable fees to your estate for acting as trustee when you die. The organization will witness your Will and store the original Will for you. They will give you an unsigned copy of your Will to take home.

You can create your own updated Will from the copy from the Public Trustee. Simply reproduce the Will on your computer using software such as Microsoft Word. Change the Executor to who you want. It’s recommended to make one or two of the beneficiaries as Executor of your Will. Make a few other minor modifications to make the Will original. Date the Will at today’s date. Make sure you have the Will witnessed correctly. This new will replaces the now outdated Will at the Public Trustee. Inform the Public Trustee / Law Office that the original Will has been revoked and succeeded by a new Will.

Law Firm

The last option to write my last Will is to have a lawyer prepare your Will. However, there will be a legal fee. Specify who is the trustee and beneficiaries. The lawyer will try to encourage you to make the law firm the executor so that they can earn legal fees for administering your deceased estate when you die. It’s recommended to make one or two of the beneficiaries the executor(s) of your Will.

Why You Need a Legal Will

Who to Include as Beneficiaries in Your Will?

Your Will serves many purposes one of which is to provide for your surviving spouse and/or children. The majority of Wills name the Testator’s spouse and children as beneficiaries.

If you are not married and/or don’t have children then you can provide assistance to your parents, brothers and sisters, children of your siblings, uncles, aunts, cousins or friends.

It is recommended (but not mandatory) to name the beneficiaries to closely follow the line of ascendency that is outlined in the intestacy law. This is the order in which your estate would be distributed if you did not have a valid Will.

Rules of Intestacy

Order of Ascendency for an Intestate Estate:

• spouse (including de facto partner)
• children
• grandchildren or great grandchildren
• parents
• brothers and sisters
• children of brothers and sisters
• grandparents
• uncles and aunts
• first cousins
• friends

Charities as Beneficiaries

Many people wish to donate to charities, research foundations or any other worthwhile cause, such as, medical research foundations (eg cancer research), hospitals, animal shelters, Salvation Army, Red Cross, NASA or Jet Propulsion Lab (JPL). JPL is the organization that controls the planetary space probes such as the Mars Landers.

It is very common for people to include their parents in their Will; however, this can cause social security issues. Parents who are receiving Government pensions may not be able to accept lump sums of cash or property because they will fail the asset and income tests and lose their pension entitlements. If the value of the estate is considerable this may not be an issue as the proceeds of the estate will replace the pension but, generally, many older parents simply cannot receive any amounts of money or receive a property without it seriously affecting their pension entitlements. They may even be worse off after receiving an inheritance.

One way around this issue is to leave the money to someone else, who is trustworthy (eg brother/sister), in trust for the parents. So the brother/sister will physically hold the money and provide assistance to the parents by way of paying their bills and/or credit cards, giving small amounts of cash or making purchases on their behalf.

It is also common for people to include their children in their Will. However, if your children are not of legal age (generally 18 years old) provision needs to be made for the circumstance where you pass away before your children have reached legal age. You need to specify that funds are held in trust for your children until they have reached legal age.

Who Can Witness a Will?

When you’re drafting your Will, be careful not to allow any beneficiary to witness your signature. At times, people can make this mistake purely out of convenience, but it can have some pretty nasty ramifications, including the gift to that beneficiary being declared invalid.

Always use a completely independent witness to sign your Will.

If your Will is going to be very complex because you have considerable wealth, many beneficiaries or want to create a testamentary trust you should consult a lawyer for advice.

There is no special qualification needed for a person to be a witness. Any person can be a witness. The important thing is that the person understands that he/she was being asked to be a witness to the will. The witness needs to be identified from the Will by providing their full name, address and contact information. Recording the witness’s driver’s licence or passport details is a good idea. In the future, a court of law may need to contact the witness to verify that they witnessed the Will.

A Witness Cannot be a Beneficiary

The witness should not be a beneficiary named in the will, the husband or wife of a beneficiary or an executor. Always make sure your witnesses are not family members.

It is recommended to use the free services of a Justice of the Peace or registered document Certifier as witness to a Will. These people are qualified to witness documents and they record information about the document they have witnessed. A court of law can contact the  Justice of the Peace or registered document Certifier to verify that they witnessed the Will.

Who Can I Name as my Executor?

You can name any person of legal age, sound mental capacity and who agrees to become your executor.

Many people simply name a close relative as executor in their Will. The only issue to remember is that if you name an older relative, such as your parents, they may not survive you. If you are older and your parents are old it is recommended to name a person the same age or younger than yourself.

It is recommended to name the Executor(s) as one or two of the beneficiaries.

So it is recommended to name your spouse and/or children as your first choice to be your Executor(s). If you are not married and have no children, name your parents, brothers and sisters as your Executor. Your next choice would be your brother’s/sister’s children, etc.

If you have no relatives and are leaving your estate to a charity name the charity as Executor.

Law Firm Trustee

If you have a Will created by the Public Trustee (or other Government Agency) they can be named Executor.

If you have a Will recorded by a law firm they will be named Executor because they want to have the business of administering your deceased estate.

Note that, the Public Trustee and law firms charge considerable fees to administer a deceased estate. The fees are based on the number and value of assets, types of assets and liabilities, complexity of the estate and contents of the Will. The fees can easily exceed $20,000 or more which means the beneficiaries receive less money.

It is far better to appoint a beneficiary to the role of Executor so that your family (beneficiaries) don’t have to pay enormous legal fees from your estate when you die.

You can appoint a close friend (or friend of the family) as Executor. Always ask them if they are happy to be named as Executor.

I would like to see the law changed so that the Public Trustee (Government department) and law firms cannot be named as Executor on Wills. It should be mandatory to include one or two beneficiaries as Executor of a Will. If the beneficiaries do not wish to administer the deceased estate themselves they can appoint a lawyer and pay the legal fees.

How to Write My Last Will & Testament

1. The Will needs to be in writing (it is usually typed but can be handwritten).
2. The easiest way to write a Will is to purchase an appropriate Last Will and Testament Form that best suits your needs. These are available online from legal document websites.
3. Enter your information in the last will and testament template and delete any remaining blank lines.
4. Always provide at least nominal gifts to all your children. If you don’t leave them anything, a judge may determine at a later date that you forgot to do so, should one of them challenge your Will. Even a gift of $1 to the child you “omit” will suffice. It is not recommended that you leave a nominal gift to your spouse using this will. In general, most jurisdictions require that the surviving spouse receive one-third to one-half of the deceased spouse’s estate. If you wish to leave less than half of your estate to your spouse, consult with an attorney.
5. Carefully review your Will so that it clearly and accurately reflects your intentions.

Witnesses for Your Will

1. Select your witnesses. Generally, most jurisdictions require two witnesses. However, it is recommended that you have three witnesses sign your Will in the event a witness dies or cannot be located. Your witnesses must be at least 18 years of age and never use a beneficiary to sign your Will. Your spouse or children can never serve as witnesses.
2. Select an appropriate executor and alternate executor. Ideally, these individuals should reside in the same city or state. Otherwise, it would be costly for your executor to travel to manage your estate. It is recommended to have a Justice of the Peace witness your Will.
3. Sign a single copy of the Will together with all witnesses and distribute unsigned copies. Witnesses must be in your immediate presence and must observe your actual signing of the Will, and all the witnesses must observe the other witnesses signing the Will. You do not need to read your Will to them, and it is unnecessary for them to read it. However, they must clearly understand that the document is your Last Will and Testament. You must clearly explain to them that you intend the document to function as your Will upon your death.
4. Some states of the USA require a Self-Proving Affidavit, and if you elect to attach one to your Will (recommended), remember that the same witnesses who observed your signing the Will should also observe your signing the Self-Proving Affidavit. Have the notary present at the signing of your Will, and then sign the Will and the Self-Proving Affidavit at the same ceremony.

No Signed Copies

1. Only prepare and complete one original Will. You must not make copies of the signed Will. You can make copies of the Will without your signature on it. If there are copies of the signed Will it can complicate matters if you wish to create a new will at a later time, as it may prove difficult to track down all copies of your old Will. Instead, consider providing your beneficiaries, executor, and alternate executor each with an unsigned copy of you Will.
2. Store your Last Will in a safe place, and let your executor and alternate executor know where they can find and access your original Will upon your death.

Where Can My Will be Stored?

The Will can be stored in a safe place at the Testator’s (the owner of the will) residence. Make sure the Will can be found if the Testator dies. It’s recommended to keep the will with other personal documents such as bank statements, property records, financial records, etc. Most people keep the will in a sealed envelope marked “Last Will & Testament of <full name>”

How to Care for an Original Will

Original Wills must be treated with extreme care. It is essential that no marks or holes are made in an original will. No pencil notes should be made on an original will, nor should any ‘post it’ note stickers be attached to an original Will, nor should any pins or staples be added to or removed from an original will. An original Will should not be stapled to an application.

The reason for this degree of care is that any attachment to a Will, or any evidence of an attachment having been made to a Will, may raise the presumption that a further testamentary document made by the testator had been attached by or at the direction of the testator, thereby altering the terms of the Will. As a consequence, it is necessary to establish how any mark evidencing an attachment to the Will was caused. Therefore, a declaration explaining the circumstances will be required.