How to Draft a Will: Your Legacy, Your Way

Oct. 6

KEY POINTS

The Significance of Wills
Wills are fundamental in ensuring the smooth distribution of assets, designating guardians, and safeguarding the well-being of loved ones. They prevent potential legal conflicts and help ensure assets are distributed according to your wishes.
Estate Planning Essentials
It's imperative to distinguish between wills and living wills, follow a comprehensive planning process, and consider trusts for efficient asset management. Clearly and effectively communicating your wishes is a crucial step in protecting and preserving your legacy.
The Role of Legal Expertise
Engaging an experienced attorney in estate planning can provide valuable guidance, ensuring your will adheres to relevant laws and regulations. Legal expertise minimizes the risk of disputes, offering peace of mind and a secure foundation for your legacy.

Fun Facts

Fewer than half of Americans, Canadians, and Britons have prepared a will. In India, the percentage drops to less than 10%, and it's even lower in China.

These five countries, when taken together, represent approximately one-third of the global population that lacks a will, making the implications for estate planning quite staggering.

The low rates of will creation in India and China can be attributed to a combination of factors including perceptions, education, socioeconomics, and cultural influences.

Considering the favorable socioeconomic conditions in the United States, Canada, and the United Kingdom, the adoption rates for wills in these countries should ideally be much higher.

Will Essentials

We emphasize the vital significance of creating a will as part of your estate planning process, dissect the fundamental stages involved in the procedure, and delve into both qualitative and quantitative factors that require thoughtful consideration to arrive at well-informed choices.

Wills – Legacy Impact

In an uncertain world, creating a will ensures the preservation of your preferences, the well-being of your dear ones, and the allocation of your assets according to your intentions.

Protecting Loved Ones

A will should provide clear instructions regarding the care and support for your spouse / significant other, children, and dependents. It may also designate a caregiver and provide financial support for your pets.

Asset Distribution

A will can enable a streamlined and proficient allocation of assets, reducing the likelihood of disputes among prospective heirs and minimizing the potential for legal conflicts. In the absence of a will, the government may impose its own distribution rules, which may not align with your intentions and could lead to unintended ramifications.

Nominating Guardians

A will allows you to designate trusted individuals as guardians for your children. This provides peace of mind knowing their upbringing will continue to align with your values.

Will vs. Living Will

The resemblances in terminology between a will and a living will can lead to misunderstandings.

A will takes effect after one's passing, governing the allocation of assets in their absence. A living will is effective during times of incapacitation, specifying medical preferences for individuals facing an inability to make decisions independently.

These legally binding documents help individuals manage financial and healthcare matters, each with specific legal requirements that vary by jurisdiction, forming a crucial part of comprehensive end-of-life planning.

The following chart illustrates the key components of each document,

	Will	Living Will
Purpose	Distribution of assets after of death	Medical treatment and healthcare decisions in case of incapacity or inability
Appointee	Executor	Power of Attorney
Appointee Role	Carry out the instructions in the will and manage the estate	Make medical decisions on behalf of the individual if they become incapacitated or unable to make the decisions themselves
Instructions	Specifies how assets (e.g., money, investments, real estate, possessions) are to be distributed among beneficiaries	Outlines preferences for medical treatments (e.g., life support, artificial nutrition, resuscitation)
Guardianship	Designates a guardian for minor children, if applicable	Focuses on healthcare decisions, not guardianship
Funeral and Burial	May include preferences for funeral arrangements and burial or cremation instructions	Primarily addresses medical treatment preferences. May include preferences for organ donation.
Contingencies	May include provisions for specific situations (e.g., beneficiary predeceases person creating the will)	Focus on healthcare decisions and preferences
Witnesses	Requires witnesses for validity (number and qualifications may vary by jurisdiction)	Requires witnesses for validity (number and qualifications may vary by jurisdiction)
Revocability	Can be revoked and updated while mentally competent	Can typically be revoked or updated while mentally competent

10 Steps to Creating a Will

The process of creating a last will and testament can become a stressful endeavor. It often requires engaging in intricate negotiations with your spouse or significant other concerning matters such as guardianship, asset distribution, and medical decision-making authority.

We recommend breaking down the process into manageable steps to reduce stress and help maintain focus while systematically navigating through the issues.

1. Collect Asset Data

Comprehensive Inventory

Compile an inventory of your assets, including, but not restricted to, bank accounts, investment portfolios (both registered and non-registered), retirement funds, real estate holdings, life insurance policies, the contents of safety deposit boxes, vehicles, jewelry, collectibles, and any loans extended to family and friends.

Provide details such as the financial institution's name, account numbers, pertinent contact information, and approximate asset valuations.

Digital Assets

Summarize all digital assets including online accounts, cryptocurrency holdings, and social media accounts (e.g., Facebook, Instagram, TikTok, Twitter, YouTube, LinkedIn). Include login details to ensure the accounts can be accessed.

Business Interests

Provide key information for all ownership interest in privately held companies. Include copies of the shareholder register, directors’ and officers’ register, material agreements, and insurance contracts. Provide contact information of all professional advisors (e.g., accountant, lawyer, banker, insurance agent).

Identify Outstanding Debts

Generate a comprehensive record of your financial obligations, which may encompass, among other things, mortgages, lines of credit, personal loans, credit card balances, student loans, auto loans, and loans extended to family and friends.

Be sure to include the financial institution's name, account numbers, essential contact information, and approximate liability amounts.

Ownership Documentation

Obtain copies of all ownership documents including, but not limited to, property deeds, vehicle titles, lease contracts, certificates for stocks and bonds, and insurance contracts.

Legal Documents

Make copies of all pertinent legal documents that may impact the distribution of your assets including, but not limited to, marriage certificate, prenuptial agreement, divorce decree / certificate of divorce.

2. Choose an Executor

Executors are appointed in your will and are responsible for executing the final wishes outlined in your will. You can appoint an individual, co-executors, professionals, corporate entities, or even a public administrator.

3. Choose Beneficiaries

In a will, a beneficiary is a chosen person or entity identified to receive particular assets or property upon the passing of an individual.

They undertake the vital responsibility of safeguarding your intended legacy, essentially becoming the custodians of your wishes and the carriers of the influence you hope to leave behind.

The selection of your beneficiary will permanently intertwine your legacy with their actions, underscoring the significance of a thoughtful choice, as they will bear a pivotal role in perpetuating and conserving your legacy for generations to follow.

4. Appoint Guardians

A guardian named in a will is the person entrusted with the legal duty of caring for, providing for, and protecting minor children should an individual pass away.

This appointment plays a crucial role in shaping the upbringing and overall welfare of your children, serving to extend and preserve your legacy. By designating a guardian, you extend your values, aspirations, and care into the future, ensuring they persist beyond your lifetime.

This choice carries profound and lasting implications for your children, serving as a testament to your unwavering commitment to their well-being and the perpetuation of your family's values and traditions.

5. Draft Your Will

Lawyer vs. Online Kit

Your decision to utilize a lawyer or online kit for your will depends on your unique circumstances and comfort level with legal matters. There are several factors that may impact your decision.

Complexity

If your estate is relatively uncomplicated, with minimal assets and beneficiaries, an online will kit could be suitable. However, as the complexity of your assets grows, especially if they are held within legal entities, and the number of beneficiaries or the intricacy of your distribution plans increases, seeking legal counsel may become essential.

Legal Knowledge

An online will kit may be suitable if you possess an adequate understanding of estate planning and probate laws. Otherwise, a lawyer can provide the necessary legal advice to ensure the will is legally sound.

Family Dynamics / Conflicts

The existence of conflicts within the family or amongst beneficiaries may require a lawyer’s expertise to ensure the will is drafted in a manner that minimizes disputes.

Guardianship

While online kits might offer adequate legal disclosures and instructions concerning your guardianship preferences, if you have any doubts, a lawyer can aid in ensuring the accurate drafting of these provisions.

Tax Implications

For larger or intricately structured estates, the involvement of lawyers and accountants may be necessary to identify tax planning opportunities and areas of risk and to create a tailored tax planning strategy for tax reduction.

Changing Laws

Lawyers are obligated to remain updated on legal developments. Whereas online service providers may not provide ongoing and current support.

Specific Bequests

Online kits may not be well suited to properly articulate any specific bequests or unique requests. A lawyer can ensure such are clearly and legally stated, minimizing the possibility of misinterpretation.

Execution

Online kits offer guidance on how to ensure your will is legally executed according to your jurisdiction's requirements. Nonetheless, a lawyer can verify that the execution is conducted correctly, ensuring the legal validity of your will.

Cost

Typically, online kits are less expensive than engaging a lawyer. You must weigh the variables above and the potential cost of disputes or legal challenges that may arise if the will is not drafted appropriately.

Peace of Mind

Ultimately, your decision hinges on your unique circumstances and your comfort with legal intricacies. Typically, we advise engaging a lawyer to guarantee the precise drafting and execution of your will, aligning with the factors mentioned earlier. This approach ensures accurate articulation of your wishes and offers the reassurance you seek.

6. Trusts

A will has the capacity to establish a trust for the purpose of efficiently managing and distributing assets upon an individual's demise. This involves the appointment of a trustee who assumes the responsibility of overseeing assets on behalf of chosen beneficiaries.

Following the probate process, assets specified in the will are subsequently transferred to the trust. The will can delineate various trust types, such as living trusts or testamentary trusts, contingent upon specific objectives.

The trustee operates in accordance with the directives outlined in the trust document and is bound by a fiduciary duty to consistently act in the best interests of the beneficiaries. Trusts confer advantages including asset protection, tax mitigation, privacy, and enhanced management control.

The key parties involved in a trust arrangement encompass the grantor/settlor (trust creation), the trustee (trust management), and the beneficiaries (entitled to benefits). It is advisable to seek the counsel of an estate planning attorney for expert guidance and periodic trust assessments to adapt to evolving circumstances and objectives.

7. Finalization

The finalization and signing of a will typically involve several key steps, which may vary by jurisdiction.

The testator must ensure that the document is drafted in accordance with their wishes and complies with local laws. It is then signed in the presence of witnesses who attest to the testator’s mental competence and the document’s authenticity. The number and qualifications of witnesses can vary by jurisdiction.

A lawyer’s legal expertise can help ensure the will adheres to local regulations and is less likely to face challenges in the future. They can help draft a clear and legally sound document, minimize the risk of disputes among beneficiaries, and ensure that the testator’s intentions are accurately reflected in the will.

This professional guidance can provide peace of mind and help safeguard the testator's legacy.

8. Secure Your Will

It is essential to keep the original will document in a safe and accessible location, such as a secure home safe or a bank's safety deposit box, while retaining a copy for easy reference.

Additionally, it's advisable to provide copies of your will to trusted individuals, such as your appointed executor, close family members, and your attorney, as this can expedite the probate process and help prevent disputes among beneficiaries.

Regularly reviewing and updating your will and informing those involved about its location and any changes is essential for effective estate planning.

9. Communicate Your Wishes

Effectively communicating your will can reduce confusion and disputes, minimize delays, ensure your intentions are fulfilled, and provide you with peace of mind.

Begin by informing your appointed executor about their role and responsibilities, providing them with a copy of your will. Additionally, it's advisable to discuss your wishes with immediate family members to avoid surprises and potential disputes.

Furthermore, consider sharing the details with your attorney or a trusted confidant.

Regularly updating these individuals about any changes to your will is essential for comprehensive estate planning.

10. Review and Update

Review your will periodically, especially after major life events (e.g., marriage, divorce, births, deaths, change in asset mix). Make the necessary changes and consider communicating such changes as described in step 9 above.

FINAL THOUGHTS

The disparities in will preparation across countries like the U.S., Canada, the U.K., India, and China underscore the complex challenges of global estate planning influenced by cultural, educational, and economic factors.

Wills play a pivotal role in asset distribution, guardianship appointment, and safeguarding loved ones' interests. It is imperative to understand the distinction between wills and living wills and the role trusts may play in your estate planning endeavors. We recommend engaging an estate lawyer and follow our 10-step plan for drafting a will.

May your legacy transcend generations.