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What Is a Will?

Wills are the most common way for people to state how their property and affairs should be distributed and handled after their deaths. You will sometimes hear or see them called a "last will and testament," but both mean the same thing. A well-written will helps to take care of surviving loved ones and can give you peace of mind.

Wills Can Be Used for Many Purposes

Wills vary from extremely simple to elaborate. It all depends on the needs and goals of the person making the will. For example, some people make a will mainly to name a guardian for their minor children if something happens to them. Others use a will as just one part of a broad estate plan that may include trustsliving wills, a power of attorney, and others. Wills can be a way to reduce taxes, distribute property, make probate easier, and avoid disagreements among loved ones.

A will is not just a tool for the wealthy. A will is beneficial if you have minor children, a few prized possessions (even if their value is mostly sentimental) or you have promised certain items to family members.

If you die without a will, your assets will be distributed according to state law. This is done through the court-supervised distribution of your estate, called probate. Probate can be a lengthy process, and it can be made tougher and longer if there is no will or estate plan in place.

Will Requirements

Formal requirements for wills vary from state to state. Generally, the testator (the one making the will) must be an adult of "sound mind," meaning that the testator must be able to understand the full meaning of the document. Wills must be written. Some states allow a will to be in the testator's own handwriting, but a better and more enforceable option is to use a typed or pre-printed document.

You must sign your will for it to be legally valid, unless you are physically unable to. If that is the case you must direct another person to sign the will in the presence of witnesses, and the signature must be witnessed and/or notarized. The exact requirements vary by state law, so be sure to verify that you have met all of the legal requirements or contact a local estate planning attorney.

Your will remains valid until you make a new one or revoke it in writing. But you can revoke or amend it at any time and for any reason.

Who Can Challenge a Will?

Not everyone is always happy about their inheritance. However, just because you disagree doesn't mean you can contest the will. According to basic probate laws, only “interested persons" may challenge a will — and only for valid legal reasons as defined by your state laws.

Reasons a will may be declared invalid include:

  • Capacity. If the person making the will is not of sound mind, it isn't enforceable.
  • Undue Duress. This just means that an individual coerced or forced the testator to modify their will.
  • Fraud. If someone alters the will, or gets the testator to sign a document without knowing what's in it, it can be declared invalid.
  • Incomplete/invalid. While it isn't too difficult to meet the legal requirements to create a valid will, it does happen. A handwritten, unsigned will may not be enforceable, for example.

Is a Lawyer Required?

You are not required to use a lawyer to create a will (or any legal document, for that matter). But a lawyer can still be essential in some cases.

Whether you need a lawyer's help depends on your circumstances and your goal in creating the will. 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 by using software, ready-made forms or instructions from a book. You can create a will with in under an hour.

Some wills involve complex issues, however, so you may benefit from the help of a lawyer. If you have a special needs child, for example, you may benefit by creating a living trust and pour over will. Attorneys often are retained when a will may be contested, as well. For example, if you plan to disinherit a spouse or child you will want to make sure your will is precise and legally sound.

While a simple will is fairly straightforward, estate planning can get complicated quickly. For other relevant legal definitions, visit the Estate and Probate Law Glossary in the FindLaw Legal Dictionary.

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