Do I Need a Will?

Wills are the most common way for people to plan for the distribution of personal assets after death. Sometimes, you hear it called a “last will and testament.” Both terms have the same meaning. It’s a legal document that expresses how a person’s assets should be distributed.

A well-written will helps loved ones after you are gone. It can also give you peace of mind during your lifetime. Creating a valid will ensures your wishes are followed instead of relying on state intestacy laws to determine who receives your assets.

An estate planning attorney can provide expert legal advice and help you create a comprehensive estate plan tailored to your needs. Keep reading to learn more about this process and how an attorney can help protect your wishes.

What Is the Purpose of a Will?

Wills vary from simple to elaborate. It all depends on the needs and goals of the person making the will.

For example, some people make a will to name a guardian for their minor children. The probate court will have the testator’s guidance regarding guardianship if something happens to them. Others use a will as part of a broader estate plan. This estate plan may include the following legal documents, including:

• Trusts
• Living wills
• Power of attorney
• Advance health care directives

Wills can be a way to:

• Distribute property
• Name guardians for minor children
• Make the probate process more manageable
• Help loved ones avoid disagreements

A will is beneficial if you have minor children or a few prized possessions (even if their value is primarily sentimental). You can ensure that certain items you promised to particular family members or beneficiaries will end up with those individuals.

A Will Does Not Control the Distribution of All Assets

A will does not control the distribution of certain assets. Some assets can pass outside of probate, whether you have a will or not, including:

• Life insurance policies with designated beneficiaries other than the estate
• Bank accounts with a transfer on death (TOD) or POD (payable on death) order
• Real estate held in joint tenancy

A Will Puts You in Control of Your Assets and Property

A will helps you avoid intestacy, or the state determining who receives your assets after you die. This is what happens if you die without a valid will.

With a will, you choose who will receive your assets when you die. You can name beneficiaries you trust instead of leaving those decisions to state intestacy laws. 

Your state’s rules determine the distribution of your property if you die without a will. This occurs through the court-supervised distribution of your estate. This process is called probate.

A Will Can Simplify the Probate Process

Probate can be a lengthy process. It’s more difficult when there’s no will in place. This is where a probate attorney’s expertise can be crucial. An attorney can ensure that the distribution of your assets proceeds smoothly with fewer delays.

Will Requirements

Formal requirements for wills vary from state to state. However, there are similarities among the states.

Sound Mind

Generally, the testator (the one making the will) must be an adult of “sound mind.” Being of sound mind means the testator must understand the document’s full meaning.

Most Wills Must Be in Writing

Wills must be written in most cases. However, some states allow holographic wills. A holographic will is a will written in the testator’s handwriting and not witnessed.

Although there may be a procedure under the law for an unwitnessed, handwritten legal document, this choice offers only some legal protection. The better, more legally enforceable option is to use a typed or preprinted document, witnessed in accordance with the applicable state law.

You must sign your will for it to be legally valid. Some exceptions allow a person who cannot sign to allow another person to sign on the testator’s behalf.

If that is the case, you must direct another person to sign the will in the presence of witnesses. The exact requirements vary by state law. Contact a local estate planning attorney to ensure you have met all the legal requirements.

Amending or Revoking a Will

You may revoke your will in writing. You may also revoke your old will by executing a new will. Your will remains valid until you make a new one.

If your circumstances change, or if you want to change your will for any reason, you can. You can revoke or amend your will at any time for any reason.

Who Can Challenge a Will?

Not everyone will be happy about how you distribute your property. But just because someone disagrees doesn’t mean they can contest the will.

According to basic probate laws, only “interested persons” may challenge a will. States have their own laws that define an interested person. An interested person can only challenge a will for valid legal reasons as defined by your state laws.

Reasons a will may be declared invalid include:

• Capacity
• Undue influence
• Fraud
• The document fails to meet the state law requirements for a valid will

If you believe that a will impacting your life was improperly executed or has been improperly followed, you may want to seek professional legal advice. A local estate planning attorney can help.

Do I Need a Lawyer To Create a Will?

You can create a will, or any number of other legal documents, without help. But a lawyer can be essential in some cases. 

Regardless of the complexity of your will or the value of your estate, an attorney can help you:

• Draft a will that fits your needs and reflects your intentions
• Avoid common mistakes
• Meet your state’s legal requirements
• Create documents that hold up in probate

For many, the cost of hiring a lawyer is worth it. It can make the entire process more secure, predictable, and easier for everyone involved.

When you engage an attorney, you enter into an attorney-client relationship. This fiduciary relationship provides you with additional protection. Whether you need a lawyer’s help depends on your circumstances and your goal in creating the will.

Simple Wills

If you don’t have a complicated financial or family situation, a simple will may be enough to meet your needs. Most people can create a simple will without a lawyer using ready-made online forms. 

Complex Wills

Some wills involve complex issues, so you may benefit from the help of a lawyer. For example, if you have a child with special needs, you may benefit from creating a living trust and a pour-over will. Or if you have a blended family or children from a prior marriage, you may need legal assistance to help determine the best way to structure your will.

Contested Wills

People often choose to retain a lawyer when a will may be contested. For example, plan for a legal fight if you plan to disinherit a spouse or child, to the extent allowed under your state’s law. You’ll want to be doubly sure your will is legally sound. Your will must be able to withstand any legal attack.

While a simple will is fairly straightforward, estate planning can get complicated quickly. FindLaw’s Estate Planning: Fundamentals and Terminology provides definitions to help you understand estate planning and probate terminology.

How To Find a Local  Estate Planning Attorney

You may be able to DIY your will for a simple estate. Still, consulting an attorney is often the safer choice if you have unique family dynamics, valuable assets, or simply want to ensure your last wishes hold up in probate. 

Because state law is relevant, your attorney should be licensed in your state. FindLaw’s directory of estate planning lawyers can get you started. Enter your city or ZIP code for a list of qualified legal advisors near you. Your search results will also show ratings and contact information.

Related Practice Areas

• Trusts
• Living Wills
• Estate Planning
• Probate