No. Even if you make a mistake in creating your will, it’s very unlikely you’ll lose your assets.
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Assets That Do Not Pass Through a Will
Not every asset a person owns goes through a will. The following types of property (called non-probate assets) get transferred on death regardless of whether there is a will or what it says:
- Life insurance benefits
- Real estate that has a title as right of survivorship/jointly owned property
- Retirement assets with named beneficiaries
- Bank accounts with named beneficiaries
- Trusts
No matter what happens with your will, these assets get transferred according to your wishes if you take the proper steps.
Dying Without a Will
If you die without a will, it’s called dying intestate. Each state has an intestacy law determining what happens to your assets if you die without a will. Most states have adopted the Uniform Probate Code (UPC), which governs decedents and inheritance laws.
When someone dies without a will, you must first file the required forms and other documents with the court to open the estate for probate. This process is known as petitioning the court. The court in which you file depends on where the decedent lived or owned a home. A court then appoints an administrator to gather the assets and debts of the estate and identify the legal heirs.
The administrator must first use the deceased’s assets to pay off any debt they have. Some of these debts will include funeral costs and medical bills. Creditors also have a right to get paid out of the estate. But they must respond to the notice that the decedent has died. Creditors have a certain time to respond and file a claim against the estate (the time a creditor has to respond varies by state law). If they don’t file, the claim gets barred. Also, there could be debt to the state or federal government for unpaid taxes. If so, those bills must be paid before distributing the rest of the assets. A final income tax return must always be filed as part of the estate procedure, and anything owed must come from the estate.
Whatever is left gets divided among the heirs according to state law. It’s usually divided as follows:
- If there is a surviving spouse, they usually get all or a large part of the estate
- If there are surviving children, they would share the estate with the spouse, or if there is no spouse, get the estate
- If there is no surviving spouse or children, the deceased’s parents would get the estate
- If there is no surviving spouse, child, or parent, the deceased’s siblings would get the estate
- Next in line are nieces and nephews and then grandparents and then aunts and uncles
- If there are no living descendants, the estate would then go to the state
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Dying With an Invalid Will
Each state has its own requirements for a will to be valid, which includes:
- Mental capacity: The testator (the person creating the will) must be over 18 and aware of their actions. In some states, they must understand what they own, who their natural beneficiaries are and how a will distributes their assets.
- Will format: In most states, a will must be in writing. In some states it can be handwritten, but it is generally safer to have a typed document. Some states also have specific provisions or wording that a will must contain to be valid.
- Signature: The testator must sign the will
- Witnesses: Most states require that two witnesses observe the signing and then sign their own names
If the will does not contain these elements, it could be invalid. A will can also be contested and found invalid if there is proof there was fraud or coercion involved when the testator created or signed it. The testator must have signed it of their own free will. Also, if there is a will with a later date, that would make an earlier will invalid. The court considers the most recent will.
Courts try very hard to uphold wills when possible to honor the testator’s wishes. If a will is invalid, the court may look to an earlier will and speak to family members or people close to the decedent. The court will decide if the will is valid based on a collection of facts.
If there is no prior will or a prior will is also invalid, then the testator is intestate, and assets get distributed according to the state’s intestacy law. If there are no living descendants, then the estate would go to the state.
Estate Taxes
An estate tax is placed on assets in the testator’s estate, ranging from 18 to 40%. The federal estate tax does not apply to most estates. As of 2024, it applies to estates worth more than $13.61 million. The assets inherited by a surviving spouse are generally not subject to this tax.
Thirteen states have an estate tax (paid by the estate), and six have an inheritance tax (paid by the people inheriting the estate). Maryland collects both.
When a will gets probated, there are court fees, attorney fees, and executor compensation. Dying without a will saves you nothing because administering an estate without a will results in similar fees and costs.
How To Ensure Your Will Is Valid
If you want to create a will but are worried you won’t do it correctly, you could work with an attorney or an online legal service to draft a valid will in your state.
If you have no living descendants, you must be certain to have a valid will and execute it properly. This is the only way your probate assets can get transferred to the people or charities you choose.
You can also ensure that most of your assets are non-probate assets (such as by setting up a trust) so your will does not control their distribution.
A carefully executed will and detailed estate plan give you control over how your probate and non-probate assets get distributed after your death and make sure that they do not go to the state. Contact an estate planning attorney for help.
