As hard as some people are working to make it happen, you're not going to live forever. You also can't take it — your money, your property; your Star Wars memorabilia — with you to whatever comes next. That is where an estate plan comes in. The calling card of the estate plan is a last will and testament, a legal document that communicates your final wishes.
You shouldn't be hard on yourself if you do not have a will. Death and money are taboo. There's also the superstition that making a will is to invite an early death. Regardless, you should have one. Once you do, you'll likely feel better for it, explains Karen Sneddon, a professor of law at Mercer University.
"Making a will does require the acknowledgment of one's death," Sneddon tells Inverse.
"But making a will can alleviate worry by putting a plan in place that will ensure one's loved ones, cherished items, and property are taken care of."
Making a will: 3 questions to consider
Here's a guide to what you need to know about making a will, or communicating your deepest desires from beyond the grave. We'll go over:
- What is a will? (More complicated than you probably realize.)
- Why make a will? (The short answer is: Save your family from the drama!)
- When you should make a will? (Before you have to.)
What is a will?
A will is a written, formal legal document. It’s a declaration about the distribution of your assets and the nomination of your trustees. It’s also, literally, your last wishes, so it’s inherently a personal record. If you die without a will, the intestacy laws of the state you live in determine how your assets will be passed out.
Wills are a part of a branch of law broadly referred to as succession. The laws around wills are different across states, but most require the will to be written, signed, and dated by the decedent (the person who the will belongs to), along with the signatures of two adult witnesses who acknowledge that the will-maker was of sound mind and under no outside influence when they created the document. Oftentimes, these witnesses can’t be people who are going to inherit anything from the will.
You don’t have to notarize your will, but some experts say doing so will help move along the probate process — that’s when a judge decides to authenticate a will or not. Roughly half the states allow for a “holographic”, or hand-written, will if it’s dated and signed. Real signatures — like the kind in ink — are required, but Sneddon notes that some states “are contemplating and sometimes recognizing a digital document.”
You also don’t have to consult an attorney before creating a will, and because wills have certain forms and formalities, some people will base theirs off what you can find in self-help books or online. Copying a will comes with pros and cons: On the upside, you follow the legal and language conventions that a will requires. When a will sounds rambling or ambiguous, it can create problems down the line.
But that language also strips away the personal aspect of a will — and when a will is impersonal, it can also be subject to legal drama when family and friends argue the will simply doesn't sound like what their loved one would want.
Sneddon advises that people provide an “enhanced description” of their assets, that reflects the history of the item — like describing a table as a place where you all would happily gather.
“When someone dies, we often lose the stories that one has constructed through life,” Sneddon says. “Including a voice in a will can help transmit those stories.”
She also advises that people create an “ethical will.” This isn’t a legal document, but a letter that gives you the opportunity to pass along memories, values, and wishes.
On the flip side, it’s important to create a will that doesn’t start a conflict. Some argue that wills that become too personal and invite litigation, Sneddon says.
“Certainly spiteful language and insults have the potential to provoke will contests,” she adds. “The will becomes a public document, so people should be careful what language is used.”
Why make a will?
Why you should make a will comes down to the practical and the sentimental. Fundamentally, it guides the transfer of your assets to another person. During life we acquire stuff, and more often than not, other people will want that stuff, either for emotional or economic reasons. When an individual fails to make clear what stuff they want to give away, drama happens in the form of fractured relationships and emotional wounds.
Why you need an executor
Your wishes in the will can include who receives your money, personal property, and who will care for any children or pets. You can also appoint an executor, who can oversee the distribution process for you. Without a will, you don’t have control over this distribution — it will be handled by the state you live in and courts.
Psychological benefits of a will
In turn, legal scholars argue that the satisfaction in knowing that your estate will be distributed in a way that makes you happy is a positive psychological consequence of will-making. It also opens the door to a certain level of post-mortem control — “the dead hand rules, if we let it, from beyond the grave, at least up to a point,” writes legal historian Lawrence Friedman in his book Dead Hands.
“To create a will is to confront one’s own mortality, assess one’s life choices, and contemplate one’s legacy,” Sneddon says.
“Will-making is one of the remaining memento mori experiences we have left.”
When should you make a will?
Now is likely the right time to make a will, if you’re physically and mentally well. Making a will should be a proactive choice, not a reactive decision.
Most states set the minimum age of 18 to create a valid will, but many people don’t take advantage of their ability to make one. Sneddon says that 60 to 70 percent of Americans die without a valid will.
She notes that just like each will should reflect the individual who it belongs too, “each person should think about when he or she is ready to create the will.” The problem is that it’s difficult to get to that emotional space. Acknowledging your own mortality is not exactly a fun thing to do.
Sneddon says that most often, a person will make a will after a major life event, like getting married, purchasing a home, starting a new job, or retiring. Economic and world events also prompt people to make wills, as do celebrity deaths.
What state of mind should you be in when making a will?
But being in a state of distress — like losing a job or learning that you are ill — is “not an ideal time to engage in estate planning,” Sneddon says.
“Decisions about estate planning should reflect current circumstances but should not be overly reactionary and motivated purely by emotions,” she explains. To efficiently create a legal document that truly reflects what you want — and is legally sound — you need time and energy.
And importantly, you’re allowed to change your mind about your will. A will, as Sneddon puts it, “walks with a person through life and only speaks at death.”
As your life changes and your circumstances change, wills can be updated to reflect your desires.