Making a Will FAQ

What happens if I die without a will?

A state's intestate succession laws govern inheritance rights if a person dies without a will or another estate planning tool to distribute assets. Typically, a spouse (or in some states a domestic partner) and children are first in line to inherit a decedent's property.

If the deceased has no spouse or children, close relatives like parents, siblings, and grandparents will inherit the property. The state receives the property if the decedent has no relatives that qualify under a state's intestate succession laws.

If a parent of minor children dies without a will and the other parent cannot provide care, the state determines who will become the guardian of the children and the property they inherit. The estate planning process allows you to name a guardian for minor children for the court to consider. You do not have to rely on the probate process to determine a guardian for your minor child.

Do I need a lawyer to create a valid will?

No. State laws do not require the assistance of a lawyer when preparing a will. Most wills only require instructions for the distribution of property and the naming of a guardian for minor children. Some people can create simple estate planning documents using software, ready-made forms, or instructions from a book. You can create a simple will without an experienced estate planning lawyer.

Can I make a handwritten will?

It depends on whether a state's law recognizes a handwritten will. In about half of the states, a person may create a handwritten will, also called a "holographic" will. Unlike typed and computer-printed wills, witnesses are unnecessary for holographic wills.

Some states require that the testator handwrite the entire holographic will, including the provisions, the date, and the signature. Other states are more lenient. The testator may use a fill-in-the-blank document containing handwritten portions, a signature, and a date.

Handwritten wills, however, may create complications. Many probate courts are hesitant to recognize the validity of these wills since they are difficult to verify. The better option is to execute a will from a DIY option that complies with your state law. Or, you can always have peace of mind when you get help from an estate attorney who can provide legal advice according to your needs.

How do I make a valid will?

When preparing a will, most states require the following elements:

• The testator is at least 18 years old and of sound mind
• The inclusion of a statement that the document is the testator's will
• The will is typed or computer-printed, except in the case of a handwritten will
• The will must have at least one provision that disposes of property or a provision that appoints a guardian for minor children
• The appointment of an executor or a personal representative
• The testator and at least two witnesses signed the will

The testator should adhere to the following guidelines when signing a will and selecting witnesses:

• The testator must sign and date the end of a typed or computer-printed will in ink
• The signature should match the name that appears in the will
• The witnesses must see the testator sign the will
• The witnesses must also sign the will
• The witnesses should be at least 18 years old
• The witnesses must not be beneficiaries in the will

It is unnecessary to have a will notarized; however, doing so may simplify probate proceedings. See also What is a "Valid Will?" for additional information on requirements for a valid will.

Can I name a guardian for my children in my will?

Yes. A will can name a guardian to care for minor children if both parents are deceased or if the surviving parent cannot care for the children. The personal guardian will have legal guardianship over the minor children until they reach the age of 18.

Concerning pets, the law views them as personal property, like a piece of jewelry or a work of art. Thus, you cannot leave personal property to a pet in your will because your pet is also considered property.

However, you can use a pet trust to provide specific instructions for caring for beloved pets following your death. With a trust, you can appoint a trustee to use assets held in the trust to take care of your pet according to your instructions.

Can I disinherit my spouse?

A spouse is entitled to half of the property acquired or earned during the marriage in a community property state. While a married person may leave half of the community property to someone other than their spouse, they may not dispose of the spouse's share of the community property.

In states where common law governs inheritance laws, a person may choose to disinherit a spouse through a will. To disinherit someone means deliberately keeping an individual from benefitting under a will.

Common law states protect the surviving spouse from complete disinheritance by granting the right of the spouse to claim some portion of the deceased spouse's property by going to court.

How do I revise my will?

A testator can change a will by preparing a new will or by adding an addition called a codicil. Revoking a will and starting over may be easier when changes are substantive. An express statement in the new will of the revocation of all prior wills legally revokes a will. Minor changes, such as adding a new provision or removing a beneficiary, are appropriate changes.

Consider updating your will whenever you experience major life changes such as the following:

• Marriage
• New partner
• Divorce
• A new baby
• Moving to a new state
• Stepchildren relationships
• Significant changes in wealth

You can update your will using trusted DIY forms or the help of a local estate planning attorney.

Get Professional Help With Your Estate Plan

Planning your estate involves a lot of complicated and personal decisions. Reviewing general guides and common questions and answers can be helpful, but a legal professional can ask questions about your situation and develop a plan that does what you intend it to do.

When you hire an attorney, you get a trusted fiduciary looking out for your best interests. An estate planning attorney can advise on your will, types of trusts, and tax laws impacting your estate.

A comprehensive estate plan considers your assets, liabilities, and family circumstances. Common estate planning documents include the following:

• Last will and testament
• Revocable Living Trust
• Power of Attorney
• Healthcare directives
• Living Will

In addition to basic estate planning documents, you should consider how aspects of your financial affairs work together.

Beneficiary Designations

It is important to realize that beneficiary designations can transfer certain assets outside of probate. You can work with the financial institution to ensure certain assets transfer to the beneficiaries you name. Common assets transferred by beneficiary designations include the following:

• Life insurance policies with a beneficiary
• Retirement accounts, including IRAs and 401(k)s
• Bank accounts (pay on death [POD] designations)

Getting beneficiary designations in place can be as simple as contacting the financial institution and filling out a form. Take advantage of this opportunity to transfer assets to family members and other loved ones after your death.

Titling Real Estate

Closely related to beneficiary designations, you can title real estate in a way that would transfer the property outside of probate when you die. Titling the property as joint tenants with the right of survivorship means that after your death, the title passes by operation of law to the surviving owner.

Where available, you could record a transfer-on-death (TOD) deed. When properly executed, the property transfers at your death to the person named in the transfer-on-death deed.

Contact an Attorney Today

Drafting a will can be confusing, and any mistakes you might make will impact your loved ones after you're gone. If you have questions about your will—or any other aspects of your estate plan—don't leave it to chance. Contact a local estate planning attorney.

Can I make a handwritten will?

It depends on whether a state's law recognizes a handwritten will. In about half of the states, a person may create a handwritten will, also called a "holographic" will. Unlike typed and computer-printed wills, witnesses are unnecessary for holographic wills. Some states require that the testator handwrite the entire holographic will, including the provisions, the date, and the signature. Other states are more lenient -- the testator may use a fill-in-the-blank document if it contains handwritten portions, a signature, and a date.

Handwritten wills, however, may create complications. Many probate courts are hesitant to recognize the validity of these wills since they are difficult to verify.

How do I make a will valid?

When preparing a will, most states require the following elements:

• The testator is at least 18 years old and of sound mind;
• The inclusion of a statement that the document is the testator's will;
• The will is typed or computer-printed, except in the case of a handwritten will;
• The will must have at least one provision that disposes of property or a provision that appoints a guardian for minor children;
• The appointment of an executor; and
• The testator and at least two witnesses signed the will.

The testator should adhere to the following guidelines when signing a will and selecting witnesses:

• The testator must sign and date the end of a typed or computer-printed will in ink;
• The signature should match the name that appears in the will;
• The witnesses must see the testator sign the will;
• The witnesses must also sign the will;
• The witnesses should be at least 18 years old; and
• The witnesses must not be beneficiaries in the will.

It is unnecessary to have a will notarized; however, doing so may simplify probate proceedings. See also What is a "Valid Will?"

Can I name a guardian for my children in my will?

Yes. A will can name a "personal guardian" to care for minor children if both parents are deceased or if the surviving parent is unable to care for the children. The personal guardian will have legal guardianship over the minor children until they reach the age of 18.

Can I disinherit my spouse?

In community property states, a spouse is legally entitled to half of the property acquired or earned during the marriage. While a married person may leave their half of the community property to someone other than their spouse, they may not dispose of the spouse's share of the community property.

In states where common law governs inheritance laws, a person may choose to disinherit a spouse through a will. However, common law states protect the surviving spouse from complete disinheritance by granting the right of the spouse to claim some portion of the deceased spouse's property by going to court.

How do I revise my will?

A testator can change a will by preparing a new will or by adding an addition called a codicil. When changes are substantive, revoking a will and starting over may be easier. An express statement in the new will of the revocation of all prior wills legally revokes a will. Minor changes, such as the addition of a new provision or the removal of a beneficiary, are appropriate changes for a codicil. See also Changing a Will.

Get Professional Legal Help Drafting Your Will

Planning your estate involves a lot of complicated and personal decisions. General guides are helpful, but a legal professional can ask questions about your situation and develop a will that does precisely what you intend it to do. If you have questions about your will, there's too much at stake to leave it up to chance -- consider calling a local estate planning attorney.