Have you ever wondered what would happen to your stuff if you died tomorrow? We’ll tell you right now: without a will, your stuff will be devised according to state law. But if creating a will seems daunting and out of reach, we’ve got good news for you! There’s something known as a “simple” will that can help you distribute your estate in a basic and simple manner without all of the frills and fluff. A simple will just devises assets, and that’s it. It’s…well…simple! Let’s get into everything you need to know about simple wills, who should get one, how they work, and so much more.
What is the simplest form of a will?
A will can encompass many different types of wills—there are pour-over wills, living wills, mutual wills, and other types of wills. When we say “simple” will, we’re talking about the most basic form of an estate planning tool. A simple will “simply” devises assets in a basic structure. This will tends to focus on the essentials without the added complexities of more detailed estate planning tools.
Here are the components of a simple will:
- Beneficiaries: A simple will has beneficiaries named that will inherit the assets of the testator (i.e., the will-maker). This is often done by devising percentages of the estate to the beneficiaries (John gets 20% of the estate, Mary gets 80% of the estate).
- Debt management: Most people have debt these days and including provisions in a simple will about how debts should be paid and by which assets are part of basic estate planning.
- Will executor: This is someone who will manage the estate and is named by the will-maker to ensure the terms of the will are met. It’s a very basic aspect of wills.
- Specific bequests: Simple wills can include specific bequests such as “To my sister, Joan, I give my antique car collection,” instead of devising a percentage of the estate to her.
- Clear and unambiguous language: A component of any well-drafted will, including a simple will, is one that has clear and unambiguous language so as not to confuse the probate court or the executor when it is time to devise the assets.
- Guardianship of Minor Children: For individuals with children under the age of 18, a simple will may also appoint a guardian to care for the children in the event of the testator’s death. This is especially important for parents, as it ensures that the children are cared for by a person the parent trusts.
As you can see, a simple will is…well…simple. It’s a way to devise assets without the frills and fluff of other complex estate planning tools.
Who needs a simple will?
Generally speaking, anyone with assets or debt can benefit from a simple will. It’s a straightforward way to make sure assets are distributed how you want them to be distributed, without all of the extra stuff. Plus, getting a will is not just for the wealthy, despite popular belief. Whether you have $1,000 or $1M, having a will allows you to dictate what happens to your stuff after you pass.
Not only that, but simple wills can also include guardianship appointments for minor children. Obviously, you don’t have to be wealthy to benefit from this aspect!
How estate distribution works with a simple will once you die
So, what happens to your stuff when you die if you have a simple will? Your will executor will step in to initiate the probate process and work with the court to inventory your assets, pay off debts and taxes, and help distribute the assets among the designated beneficiaries you listed in your simple will.
Probate court is an important part of managing your estate through a simple will. A probate court basically puts the stamp of approval on your will executor’s actions and makes sure everything is going legally and accurately. In addition, the probate court is there to step in if there are any bumps in the road, such as someone contesting the validity of the will or inability to locate a beneficiary.
Generally, when a will executor is devising your assets according to your will instructions, they will begin with the specific bequests, such as “my entire car collection to my cousin, John,” and then will devise the sweeping percentages of the estate to the rest of the beneficiaries, such as “50% of my estate to my daughter, Ashley.”
How to avoid common mistakes in simple wills
If you are going the no-attorney route in creating a simple will, there are certain legal pitfalls to be aware of to ensure your will is legally sound. Here are some common mistakes to avoid:
- Don’t download an online template to fill out without understanding every word of what it says. You wouldn’t want to accidentally devise assets to the wrong person or entity.
- Make sure to follow your state’s protocols in regard to formalities such as signatures, witnesses (typically two), and whether they need to be disinterested parties (i.e., not beneficiaries). Failing to follow these requirements, such as not having the document properly witnessed or notarized (where required), could invalidate your will.
- Make sure to use clear and concise language so as not to confuse a probate court or your will executor when they are trying to interpret your document.
- Make sure you appoint an executor and an alternate/backup executor. If your chosen executor is unavailable or unwilling to serve, your will may face delays or complications. Always name an alternate executor to handle your estate in case your primary choice cannot fulfill the role.
- Don’t leave your will in an inaccessible location without informing anyone close to you about its whereabouts. Your will should be easily accessible, and someone should know about it (especially the will executor). If your loved ones cannot locate your will after your death, they may have to go through a lengthy legal process to find it, and in some cases, the will may be considered lost.
- Don’t forget to update the will as things in your life change. For example, if you get married/divorced or have children, there’s a good chance you will want to update your will to reflect these changes.
Do I need a lawyer for a simple will?
No! Generally, lawyers are not required to create a will. People have the freedom to devise their assets how they choose, so long as they follow their state’s law on creating a will. For example, many states require wills to be in writing, signed by the will-maker at the end of the document, and attested to by two disinterested witnesses. And the will-maker must also be of sound mind and memory. Easy peasy, no lawyer required! However, there are also benefits to hiring a lawyer, which we will discuss in the next section.
When to seek legal guidance for a simple will
Though hiring an attorney is not required for a simple will, there are some situations where seeking legal guidance can ensure that your wishes are carried out as intended and that the will is legally sound. For example, if you have complex assets, such as businesses, shared assets with third parties who are not your spouse or beneficiary, or trusts, it can be difficult to navigate how to distribute these assets.
If you have a larger estate, you may also have questions about estate taxes and how to avoid those. Estate taxes, both at the federal and state level, can be complicated, and failing to consider them in your planning may result in your heirs facing unnecessary tax burdens. If your estate exceeds the estate tax exemption limits (which vary by state and may change over time), you may want to seek advice from an attorney to minimize taxes and avoid leaving your beneficiaries with a substantial tax bill. This could involve setting up trusts, making lifetime gifts, or other strategies that require legal expertise.
In addition, if you want to update or revoke a simple will, you may want to reach out to a lawyer to help make sure you execute this process correctly. Remember, life happens and changes quickly and your estate planning will need to properly reflect life events such as marriages, births of children, etc.
You can find estate planning attorneys in several different ways. First, you can try asking around and see who in your network has worked with a reputable estate planning attorney. Second, you can try googling “estate planning attorney in [State].” Third, you can call your local bar association to see what referral programs are available. Don’t hesitate to meet with several attorneys to discuss your needs and see who you feel most comfortable working with. Estate planning is a personal matter, and finding a lawyer you trust is key to the success of your will.
Final thoughts on getting a simple will
As you can see, getting a simple will is easy. You don’t need an attorney. You can just follow your state laws to ensure you have a legally sound document and make sure you review it regularly to keep it up to date. Having a simple will can ensure your assets are devised how you want them to be, regardless of how much money you have. Taking the first step towards securing your estate and protecting loved ones is easily done with a simple will, so don’t be afraid to get started today.
Katherine (Kathy) Bakes is the founder and managing attorney of Bakes Law LLC. Her eleven years of practice involves all aspects of family law, including the formation of prenuptial and postnuptial agreements, divorce and legal separations, child custody, child support, and visitation agreements, spousal support and financial settlements. Kathy also engages in the practice of estate planning including the formation of wills, revocable and irrevocable trusts, durable powers of attorney, health care proxies, HIPAA authorizations and living wills. Kathy is a member of both the Connecticut and Massachusetts state bars after receiving her Juris Doctorate degree from New England Law | Boston. Kathy lives in Southport, CT with her husband and toddler. Outside the office, Kathy enjoys playing the piano and teaches music education to students of all ages.
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