To Die Is Human, to Have a Will Is Divine

If you have assets, kids or a spouse, you need a will. Here are the steps you should take.
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I made three New Year's resolutions for myself this year:

1. Spend more time playing with my kids.

2. Open 529 college savings accounts for them.

3. Get a will.

The first is clearly fodder for another publication (although any suggestions would be greatlyappreciated!), and we covered the second

last week.

So on to No. 3.

I feel very young to even consider having a will, but apparently I am five years too late. I should've gotten one back in 2000, when my first child was born. But between diaper changes, late-night feedings and eight weeks of colic, the only will I was concerned with was my will not to collapse.

While I am no less tired today, I am much more aware of a will's significance. And although it may sound like something only the Paris Hiltons of the world have, it's likely that you need one.

Basically, anyone who is 18 or older and has assets, kids or a spouse needs a will, says Jonathan Rikoon, a partner in the Trusts and Estates Practice Group at Debevoise & Plimpton in New York.

So that's just about all of us.

Think about what you have. Even if you don't have kids, you have things that are valuable to you. So if you're afraid that your brother is going to take your baseball card collection when you die but you really want your nephew to have it, get your wishes in a will.

What Should Go in a Will?

First, you need to determine what you want to give out and how you want to do it, says Rikoon.

Start with your kids. Who's going to take care of them if both parents die? Having your baseball card collection go to the wrong person is one thing; having your kids go to the wrong person is a whole different ballgame.

Many people often chose their parents as guardians for their children. But let's face it, grandparents tend to die first. So if you do choose them, consider a backup plan, in case your parents are deceased as well.

Then go through your assets. Your house, investment accounts and jewelry are obvious. But don't forget your antiques, Beatles record collection and favorite chair. Anything that you want to leave to someone should be recognized in your will, or else the state will decide who gets it. And the clearer you are, the easier it will be for your heirs. As opposed to saying, "I want my kids to have my paintings," be specific. "Johnny gets the Degas, and Katie gets the Picasso."

You'll then need to pick an executor of your will. This can be anyone. The executor basically will read the document and make sure your wishes are granted after your death. So don't pick a pushover.

And if you're passing money on to minor children, you'll need a trustee as well. This person will need some financial savvy, since he'll be watching your money until your kids can get their hands on it.

Your executor and trustee can be the same person, if you believe that person can handle both jobs well.

Now what

can't

go in your will? To start, if you have assets that required a beneficiary selection, you can't use your will to dictate who gets those. The proceeds from your life insurance policy, pension plan, IRA, 401(k), or other retirement plan were already accounted for when you picked your beneficiaries. So make sure you're happy with those selections.

In addition, don't bother putting your funeral directives in your will. In most cases, you're good and buried by the time your will is actually read. So if you want to be cremated and have your ashes thrown into the Hudson River, write that down on a separate piece of paper and give it to someone who will fulfill your wish.

And go easy on making conditional gifts in your will. For instance, "My daughter can only receive her inheritance if she marries a man with green eyes, a doctorate and willingness to hang a 20" x 40" picture of me above the fireplace." (A mother can dream, can't she?) All that does is make your heirs angry and drags them into court, because they'll try to contest it.

And finally, don't try to leave money to Rover, no matter how faithful a dog he's been. Believe it or not, the law doesn't allow animals to inherit property. Instead, be clear on who should take care of him when you're gone.

How Do I Draft It?

In theory, you don't need an attorney to create an official will. But you do need to follow some protocol. Writing your wishes on a napkin and putting it in a drawer will do you no good.

If your situation is pretty straightforward, you could pick up a will kit, such as

QuickenWillMaker

by

Nolo. It will hold your hand and help you create a will.

Just know that there are state requirements that must be met to validate your will. Most states require that you sign it in front of two witnesses and have it notarized. So if you do it yourself, make sure you're aware of your state's rules.

To best ensure the will's authenticity, get an attorney, although that could run you anywhere from a few hundred dollars to a few thousand.

If your will is straightforward, consider the guy who practices out of his basement, presuming he's got the credentials. For a few hundred dollars you'll have a will and the peace of mind that it's done properly.

Rikoon suggests checking out your local bar association. For instance, the New York Bar Association offers a legal

referral service. The attorneys are screened and are required to charge nominal rates.

If your situation is a bit more complex and there are tax-planning concerns, go to a good firm and get it done properly. You're probably looking at a few thousand bucks, but no doubt you spent that much on a flat-panel TV this year. So don't cheap out on your heirs.

Finally, put your will in a very safe place -- but remember to tell someone where it is. If no one can find it when you're gone, there's no doubt your brother will run off with that baseball card collection of yours.

And I'll undoubtedly grab that Degas.

Tracy Byrnes is an award-winning writer specializing in tax and accounting issues. As a freelancer, she has written columns for wsj.com and the New York Post and her work has appeared in SmartMoney and on CBS MarketWatch. Prior to freelancing, she spent four years as a senior writer for TheStreet.com. Before that, she was an accountant with Ernst & Young. She has a B.A. in English and economics from Lehigh University and an M.B.A. in accounting from Rutgers University. Byrnes appreciates your feedback;

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