Wills: An Overview

A well-written will is an estate planning document that helps ease the transition for survivors. A simple will conveys the testator's wishes for transferring real estate and personal property during the probate process.

Despite these advantages, many estimates figure that at least 70% of Americans do not have valid wills or a will that complies with state laws. While it is difficult to think about mortality, many people gain peace of mind by putting their affairs in order. A simple will is an important part of the estate planning process.

Wills vary from simple single-page documents to elaborate volumes, depending on the estate size and preferences of the person making the will (the "testator"). Wills are legal documents describing the estate, the people who will receive specific property (the "devisees"), and even special instructions about the care of minor children, children with special needs, gifts to charity, and the formation of posthumous pour-over trusts.

Many choose to disinherit people who expect to receive property. The testator must follow the legal rules for wills to make the document effective.

Will Requirements

State law determines the rules for a valid will. Requirements vary according to state law. You can learn more about state-specific laws on our wills law answer page. Generally, the testator must be an adult of "sound mind," meaning the testator must understand the entire document's meaning.

If you wait too long to complete your estate plan that includes a simple will, your loved ones may engage in a will contest. A beneficiary may challenge the validity of your will. They could argue that you were incapacitated when you executed the will.

A will must be in writing. Some states allow a will to be in the testator's handwriting, but a better and more enforceable option is to use a typed or pre-printed document. A testator must sign their own will. If the testator cannot sign the will, someone must sign the will in the presence of the testator and other witnesses. In some cases, the will must be notarized. A valid will remains in force until revoked or replaced by a later valid will. Some changes may be made by amendment (called a "codicil") without requiring a complete rewrite.

Will Limitations

Some legal restrictions prevent a testator from giving full effect to their wishes. Some laws prohibit the disinheritance of spouses or dependent children. A married person cannot completely disinherit a spouse without the spouse's consent, usually in a pre-nuptial agreement. In most jurisdictions, a surviving spouse has a right of election, which allows the spouse to take a percentage (up to one-half) of the estate when a spouse is dissatisfied with the will. Non-dependent children may be disinherited, but this preference should be clearly stated to avoid confusion and possible legal challenges.

Property Subject to Transfer Outside a Will

Some properties may not descend by will. Property owned in joint tenancy may only go to the surviving joint tenant. A decedent may have owned real property or financial accounts as joint tenants. Property in a living trust also passes outside a will. Property placed in a living trust automatically goes to the beneficiaries and is managed by a trustee.

Certain assets, such as retirement accounts, transfer through beneficiary designations. A decedent should make beneficiary designations with the financial institution holding the property. Transfer by beneficiary designations is common for the following property:

• Pensions
• Bank accounts
• Insurance policies, including life insurance policies
• Annuities
• IRAs
• Brokerage accounts

When you name a beneficiary designation in the manner required by the financial institution, the asset must go to the designated beneficiaries.

Appointing a Representative

The probate process begins with someone filing a petition to open an estate. A will usually names a personal representative (or "executor") to perform the testator's specific wishes after death. The personal representative need not be a relative, although testators typically choose a family member or close friend, as well as an alternate choice. The court will usually appoint the individual named in the will if they meet all legal requirements under state law. The chosen representative should know their responsibilities before the testator dies. ensures that they are willing to undertake these duties. The personal representative's duties include:

• Consolidating and managing the testator's assets
• Collecting any accounts owed to the testator at death
• Selling property
• Paying estate taxes
• Filing tax returns
• Paying expenses, such as credit cards and other loans
• Filing all necessary court and other legal documents

Generally, a personal representative's filings are part of the public record. The public aspect of a probate estate is one reason some individuals prefer to avoid the probate process altogether.

Choosing a Guardian

Testators who have minor or dependent children may use a will to name a guardian to care for their children if there is no surviving parent to do so. A court may appoint a guardian if a will does not name a guardian. A testator usually selects a family member or friend to perform this function and often names an alternate. Potential guardians should know their name is in the will and that they fully understand the requirements. The choice of guardian usually affects other will provisions. For example, the testator may want to financially support the guardian in raising surviving children.

When No Valid Will Exists

Survivors may face a complicated, time-consuming, and expensive legal process if a person dies without a valid will and does not make alternative arrangements to distribute property. Dying without a will leaves an estate "intestate." A probate court must divide the estate using legal defaults that give property to surviving relatives. The court pays any unpaid debts and death expenses first, then follows the legal requirements for distributing the remaining assets.

The rules vary depending on whether the deceased was married and had children and whether the spouse and children are alive. The estate is divided between other relatives if the intestate individual has no surviving spouse, children, or grandchildren. Therefore, intestacy may mean that people who would never have been chosen to receive property will be entitled to a portion of the estate. Additionally, state intestacy laws only recognize relatives, so close friends or charities that the deceased favored receive nothing.

The estate typically goes to the state or local government if there are no relatives. Intestacy also poses a heavy tax burden on estate assets. When aware of intestacy's consequences, most people prefer to leave instructions rather than subject their survivors and property to government-mandated division.

Other Legal Documents Related to Your Estate Plan

A will is an essential legal document for most people's estate plans and provides arrangements for settling an estate after death. But key documents can help you and your loved ones during your lifetime.

A power of attorney is a document that gives a person legal decision-making ability for another person. It can become effective upon incapacity or as determined by the terms of the papers. The document must comply with state law to be effective.

A general durable power of attorney covers a wide range of financial transactions. But limited powers of attorney cover only specific situations, such as authorizing a person to sell real estate to make decisions for arranging long-term care.

For healthcare decisions, you may appoint a healthcare power of attorney. This person can make decisions during your life about your healthcare if you become incapacitated or are otherwise unable to make decisions about your health. A living will is a legal document outlining medical treatments you want to keep you alive and your preferences for other medical decisions, such as pain management or organ donation.

Get Legal Help

Getting legal advice is wise, even if you're not too concerned about what happens to your belongings after you die. Remember that your surviving family members must make these arrangements in your absence. Without a will, the process can be expensive and unnecessarily tedious. Writing a will while you're relatively healthy and of sound mind makes sense. You can even use a DIY form to help jump-start the process. Get started today by contacting an estate planning lawyer near you.

Will Limitations

Some legal restrictions prevent a testator from giving full effect to his or her wishes. Some laws prohibit disinheritance of spouses or dependent children. A married person cannot completely disinherit a spouse without the spouse's consent, usually in a pre-nuptial agreement. In most jurisdictions, a surviving spouse has a right of election, which allows the spouse to take a legally-determined percentage (up to one-half) of the estate when he or she is dissatisfied with the will. Non-dependent children may be disinherited, but this preference should be clearly stated in the will in order to avoid confusion and possible legal challenges.

Some property may not descend by will. Property owned in joint tenancy may only go to the surviving joint tenant. Also, pensions, bank accounts, insurance policies and similar contracts that name a beneficiary must go to the named party.

Appointing a Representative

A will usually appoints a personal representative (or "executor") to perform the specific wishes of the testator after he or she passes on. The personal representative need not be a relative, although testators typically choose a family member or close friend, as well as an alternate choice. The chosen representative should be advised of his or her responsibilities before the testator dies, in order to ensure that he or she is willing to undertake these duties. The personal representative consolidates and manages the testator's assets, collects any debts owed to the testator at death, sells property necessary to pay estate taxes or expenses, and files all necessary court and tax documents for the estate.

Choosing a Guardian

Testators who have minor or dependent children may use a will to name a guardian to care for their children if there is no surviving parent to do so. If a will does not name a guardian, a court may appoint someone who is not necessarily the person whom the testator would have chosen. Again, a testator usually chooses a family member or friend to perform this function, and often names an alternate. Potential guardians should know they have been chosen, and should fully understand what may be required of them. The choice of guardian often affects other will provisions, because the testator may want to provide financial support to the guardian in raising surviving children.

When No Valid Will Exists

If a person dies without a valid will and did not make alternative arrangements to distribute property, survivors may face a complicated, time-consuming, and expensive legal process. Dying without a will leaves an estate "intestate," and a probate court must step in to divide up the estate using legal defaults that give property to surviving relatives. The court pays any unpaid debts and death expenses first, then follows the legal guidelines.

The rules vary depending on whether the deceased was married and had children, and whether the spouse and children are alive. If the intestate individual has no surviving spouse, children, or grandchildren, the estate is divided between various other relatives. Therefore, intestacy may mean that people who would never have been chosen to receive property will in fact be entitled to a portion of the estate. Additionally, state intestacy laws only recognize relatives, so close friends or charities that the deceased favored do not receive anything.

If no relatives are found, the estate typically goes to the state or local government. Intestacy also poses a heavy tax burden on estate assets. When made aware of the consequences of intestacy, most people prefer to leave instructions rather than subject their survivors and property to government-mandated division.

Get Legal Help with Your Will

Even if you're not too concerned about what happens to your remains or your belongings after you die, keep in mind that your surviving family members will have to make these arrangements in your absence. Without a will, the process can be expensive and unnecessarily tedious. It makes sense to write a will while you're relatively healthy and of sound mind. You can even use a DIY form to help jump-start the process. Get started today by contacting an estate planning lawyer near you.