A will is a legally binding document that identifies who should inherit a person's property after they die. Recipients often include a spouse, children, grandchildren or a charitable organization. Many wills also contain a provision that names a guardian to care for minor children. A person that makes a will is called a testator.
If a person dies without a will or another legal distribution device, a state's laws of intestate succession govern inheritance rights. Typically, a spouse (or in some states a domestic partner) and children are first in line to inherit a decedent's property. If the deceased did not have a spouse or children, close relatives like parents, siblings, and grandparents will inherit the property. If the decedent has no relatives that qualify under a state's intestate succession laws, the state receives the property.
If a parent of minor children dies without a will and the other parent is unable to provide care, the state determines who will become the guardian of the children and the property they inherit.
No. State laws do not require the assistance of a lawyer when preparing a will. Because most wills only require instructions for the distribution of property and the naming of a guardian for minor children, most people can create a simple will by using software, ready-made forms or instructions from a book.
It depends on whether a state's law recognizes a handwritten will. In about half of the states, a person may create a handwritten will, also called a "holographic" will. Unlike typed and computer-printed wills, witnesses are unnecessary for holographic wills. Some states require that the testator handwrite the entire holographic will, including the provisions, the date, and the signature. Other states are more lenient -- the testator may use a fill-in-the-blank document if it contains handwritten portions, a signature, and a date.
Handwritten wills, however, may create complications. Many probate courts are hesitant to recognize the validity of these wills since they are difficult to verify.
When preparing a will, most states require the following elements:
The testator should adhere to the following guidelines when signing a will and selecting witnesses:
It is unnecessary to have a will notarized; however, doing so may simplify probate proceedings. See also What is a "Valid Will?"
Yes. A will can name a "personal guardian" to care for minor children if both parents are deceased or if the surviving parent is unable to care for the children. The personal guardian will have legal guardianship over the minor children until they reach the age of 18.
In community property states, a spouse is legally entitled to half of the property acquired or earned during the marriage. While a married person may leave their half of the community property to someone other than their spouse, they may not dispose of the spouse's share of the community property.
In states where common law governs inheritance laws, a person may choose to disinherit a spouse through a will. However, common law states protect the surviving spouse from complete disinheritance by granting the right of the spouse to claim some portion of the deceased spouse's property by going to court.
A testator can change a will by preparing a new will or by adding an addition called a codicil. When changes are substantive, revoking a will and starting over may be easier. An express statement in the new will of the revocation of all prior wills legally revokes a will. Minor changes, such as the addition of a new provision or the removal of a beneficiary, are appropriate changes for a codicil. See also Changing a Will.
Planning your estate involves a lot of complicated and personal decisions. General guides are helpful, but a legal professional can ask questions about your situation and develop a will that does precisely what you intend it to do. If you have questions about your will, there's too much at stake to leave it up to chance -- consider calling a local estate planning attorney.
