Wills FAQ

Though most Americans are aware that they need a will, the majority--about 70% of us--don't have one. There are lots of reasons we put off making our wills, from fear of lawyers' fees to fear of death. But writing a will doesn't have to be expensive, or even terribly complicated. And once it's done, you can rest a little easier, knowing that your wishes are known and will be followed after your death.

What happens if I die without a will?

If you don't make a will or use some other legal method to transfer your property when you die, state law will determine what happens to your property. (This process is called "intestate succession.") Your property will be distributed to your spouse and children or, if you have neither, to other relatives according to a statutory formula. If no relatives can be found to inherit your property, it will go into your state's coffers. Also, in the absence of a will, a court will determine who will care for your young children and their property if the other parent is unavailable or unfit.

Do I need a lawyer to make my will?

Probably not. Making a will rarely involves complicated legal rules, and most people can draft their own will with the aid of a good self-help book or software program. If you know what you own, whom you care about, and you have a good self-help resource to guide you, it's hard to make a mistake.

But you shouldn't approach the task of will drafting absolutely determined not to consult a lawyer. If you have questions that aren't answered by the resource you're relying on, a lawyer's services are warranted. Even so, you don't have to turn over the whole project; you can simply ask your questions and then finish making your own will.

For more information, see Do You Need a Lawyer to Make Your Will?.

For example, you may want to consult a lawyer if:

You have questions about your will or other options for leaving your property.
You expect to leave a very large amount of assets--say, over $1 million--that will be subject to substantial estate taxes unless you engage in tax planning. (But first look at a good self-help resource that discusses tax-savings strategies.)
You own a small business and have questions as to the rights of surviving owners or your ownership share.
You must make arrangements for long-term care of a beneficiary--for example, a disabled child.
You fear someone will contest your will on grounds of fraud, or claim that you were unduly influenced or weren't of sound mind when you signed it.
You wish to leave no property, or very little property, to your spouse. It's usually not possible to do this unless you live in a community property state where your spouse already owns half of most assets acquired after marriage. (See Can I disinherit relatives I don't like?) But a lawyer can explain exactly what your spouse is entitled to claim from your estate.

Also, some people simply feel more comfortable having a lawyer review their will, even though their situation has no apparent legal complications.

I don't have much property. Can't I just make a handwritten will?

Handwritten wills, called "holographic" wills, are legal in about 25 states. To be valid, a holographic will must be written, dated and signed in the handwriting of the person making the will. Some states allow will writers to use a fill-in-the-blanks form if the rest of the will is handwritten and the will is properly dated and signed.

If you have very little property, and you want to make just a few specific bequests, a holographic will is better than nothing if it's valid in your state. But generally, we don't recommend them. Unlike regular wills, holographic wills are not usually witnessed, so if your will goes before a probate court, the court may be unusually strict when examining it to be sure it's legitimate. It's better to take a little extra time to write a will that will easily pass muster when the time comes.

Making Your Will Legal

Any adult of sound mind is entitled to make a will. (And if you're reading this article, you're of sound mind.) Beyond that, there are just a few technical requirements:

The will must be typewritten or computer generated (unless it is a valid handwritten will, as discussed above).
The document must expressly state that it's your will.
You must date and sign the will.
The will must be signed by at least two, or in some states, three, witnesses. They must watch you sign the will, though they don't need to read it. Your witnesses must be people who won't inherit anything under the will.

You don't have to have your will notarized. In many states, though, if you and your witnesses sign an affidavit (sworn statement) before a notary public, you can help simplify the court procedures required to prove the validity of the will after you die.

For more information, see What Makes a Will Legal?.

Do I need to file my will with a court or in public records somewhere?

No. A will doesn't need to be recorded or filed with any government agency, although it can be in a few states. Just keep your will in a safe, accessible place and be sure the person in charge of winding up your affairs (your executor) knows where it is.

Can I use my will to name somebody to care for my young children, in case my spouse and I both die suddenly?

Yes. If both parents of a child die while the child is still a minor, another adult--called a "personal guardian"--must step in. You and the child's other parent can use your wills to nominate someone to fill this position. To avert conflicts, you should each name the same person. If a guardian is needed, a judge will appoint your nominee as long as he or she agrees that it is in the best interest of your children.

The personal guardian will be responsible for raising your children until they become legal adults. Of course, you should have complete confidence in the person you nominate, and you should be certain that your nominee is willing to accept the responsibility of raising your children should the need actually arise.

For more information, see Choosing Someone to Raise Your Children.

I'm raising a child on my own. Do I have to name the other biological parent as personal guardian, or can I name someone who I think will do a better job of caring for her?

If one parent dies, the other usually takes responsibility for raising the child. But if you and the other parent have parted ways, you may feel strongly that he or she shouldn't have custody if something happens to you. A judge will grant custody to someone else only if the surviving parent:

has legally abandoned the child by not providing for or visiting the child for an extended period, or
is clearly unfit as a parent.

In most cases, it is difficult to prove that a parent is unfit, absent serious problems such as chronic drug or use, mental illness, or a history of child abuse.

If you honestly believe the other parent is incapable of caring for your child properly, or simply won't assume the responsibility, you should write a letter explaining why, and attach it to your will. The judge will take it into account, and may appoint the person you choose as guardian instead of the other parent.

How to Leave Property to Young Children

Except for property of little value, the law requires that an adult manage property inherited by children until they turn 18. You can use your will to name someone to manage property inherited by minors, thus avoiding the need for a more complicated court-appointed guardianship. There are many ways to structure a property management arrangement. Here are four of the simplest and most useful:

Name a custodian under the Uniform Transfers to Minors Act. The Uniform Transfers to Minors Act (UTMA) is a law that has been adopted in almost the same form in almost every state. Under the UTMA, you can choose someone, called a custodian, to manage property you are leaving to a child. If you die when the child is under the age set by your state's law--18 in a few states, 21 in most, 25 in several others--the custodian will step in to manage the property. An UTMA custodianship must end by the age specified by your state's law (18, 21 or up to 25). At that time, your child receives what's left of the property outright. If, however, you want to extend property management beyond the age set by your state, you may want to use one of the next three methods.
Set up trust for each child. You can use your will to name someone (called a trustee), who will handle any property the child inherits until the child reaches the age you specify. When the child reaches the age you specified, the trustee ends the trust and gives whatever is left of the trust property to the child.
Set up a "pot trust" for your children. If you have more than one child, you may want to set up just one trust for all of them. This arrangement is usually called a pot trust. In your will, you establish the trust and appoint a trustee. The trustee doesn't have to spend the same amount on each child. Instead, the trustee decides what each child needs, and spends money accordingly. When the youngest child reaches a certain age, usually 18, the trust ends. At that time, any property left in the trust will be distributed as you direct in the trust document.
Name a property guardian. If you wish, you can simply use your will to name a property guardian for your child. Then, if at your death your child needs the guardian, the court will appoint the person you choose. The property guardian will manage whatever property the child inherits, from you or others, if there's no other mechanism (a trust, for example) to handle it.

For more information, see Leaving Property to Your Children.

Can I disinherit relatives I don't like?

It depends on whom you want to disinherit. If it's anyone other than your spouse or child, the rule is very simple: don't mention that person in your will, and he or she won't receive any of your property. Rules for spouses and children are somewhat more complex.

Spouses

It is not usually possible to disinherit your spouse completely. If you live in a community property state (Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington or Wisconsin), your spouse automatically owns half of all the property and earnings (with a few exceptions) acquired by either of you during your marriage. You can, however, leave your half of the community property, and your separate property (generally considered to be all property you owned before marriage or received via gift or inheritance during marriage), to anyone you choose.

In all other states, there is no rule that property acquired during marriage is owned by both spouses. To protect spouses from being disinherited, these states give your spouse a legal right to claim a portion of your estate, no matter what your will provides. But keep in mind that these provisions kick in only if your spouse challenges your will. If your will leaves your spouse less than the statutory share, and he or she doesn't object, the document will be honored as written.

If you don't plan to leave at least half of your property to your spouse in your will and have not provided for him or her generously outside your will, you should consult a lawyer--unless your spouse willingly consents in writing to your plan.

Children

Generally, it's legal to disinherit a child. Some states, however, protect minor children against the loss of a family residence. For example, the Florida Constitution prohibits the head of a family from leaving his residence to anyone other than a spouse if he is survived by a spouse or minor child.

Most states have laws--called "pretermitted heir" statutes--to protect children of any age from being accidentally disinherited. If a child is neither named in your will nor specifically disinherited, these laws assume that you accidentally forgot to include that child. In many states, these laws apply only to children born after you made your will, but in a few states they apply to any child not mentioned in your will. The overlooked child has a right to the same share of your estate as he or she would have received if you'd left no will. The share usually depends on whether you leave a spouse and on how many other children you have, but it is likely to be a significant percentage of your property. In some states, these laws apply not only to your children, but also to any of your grandchildren by a child who has died.

To avoid any legal battles after your death, if you decide to disinherit a child, or the child of a deceased child, expressly state this in your will. And if you have a new child after you've made your will, remember to make a new will to include, or specifically disinherit, that child.

For more information, see Disinheriting Your Spouse, Children and Other Relatives.

What happens to my will when I die?

After you die, your executor (the person you appointed in your will) is responsible for seeing that your wishes are carried out as directed by your will. He or she may hire an attorney to help wind up your affairs, especially if probate court proceedings are required. Probate and executors are discussed in more detail in the Probate FAQ and Executors FAQ.

Make Your Will and Records Accessible

Your executor's first task is to locate your will, and you can help by keeping the original in a fairly obvious place. Here are some suggestions.

Store your will in an envelope on which you have typed your name and the word "Will."
Place the envelope in a fireproof metal box, file cabinet or home safe. An alternative is to place the original in a safe deposit box. But before doing that, learn the bank's policy about access to the box after your death. If, for instance, the safe deposit box is in your name alone, the box can probably be opened only by a person authorized by a court, and then only in the presence of a bank employee. An inventory may even be required if any person enters the box or for state tax purposes. All of this takes time, and in the meantime, your document will be locked away from those who need access to it.

Finally, wherever you choose to keep your will, make sure your executor (and at least one other person you trust) knows where to find it.

What if someone challenges my will after I die?

Very few wills are ever challenged in court. When they are, it's usually by a close relative who feels somehow cheated out of his or her rightful share of the deceased person's property.

Generally speaking, only spouses are legally entitled to a share of your property. Your children aren't entitled to anything unless you unintentionally overlooked them in your will. (See "Can I disinherit relatives I don't like?".)

To get an entire will thrown out as invalid, someone must go to court and prove that it suffers from a fatal flaw: the signature was forged, you weren't of sound mind when you made the will, or you were unduly influenced by someone.

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