The vast majority of Americans die without wills, and the consequences vary greatly with individual circumstances. Every adult should think about making a will, and the need grows as your assets and family ties increase. Wills are especially crucial for parents with children who are minors (under 18 in most states), since you can name a guardian in a will and make arrangements for financial support of children even past the age of 18.
Couples also have each other to think about. If your spouse dies without a will, state law might force you to split the assets of the estate (the deceased's property) with your children, leaving you without enough assets to support yourself. Also, any property going to a minor child in such a situation would be subject to an expensive court-appointed guardianship, which could eat up any inheritance.
Yes. If you are single, with few assets, you probably don't need one. And if you care about who would get something (such as a car) if you die, you could make the item joint property by naming a co-owner on the deed or title. That person would get full ownership of the item upon your death. The potential downside of this is that you are giving the co-owner an interest in that property for life, and you may not be able to change your mind. Financial accounts can also be jointly held and will pass directly to anyone you name. Without this kind of planning, your possessions will go to your closest heirs, probably your parents or siblings-which may or may not suit you.
If you die without a will-that is, intestate-state laws determine how your property will be distributed among your heirs, or closest relatives with the right to inherit. As a rule, the surviving spouse gets half the estate and any children divide the other half. Grandchildren would be next in line, followed by parents, siblings, and other relatives of the deceased. If a person dies without a will and without any traceable heirs, all property goes to the state.
The estate is legally in limbo until the state appoints an administrator (usually an heir) who must make sure there is no will, and notify all heirs they are in line to inherit. The administrator performs many of the functions of an executor-he or she pays debts and taxes, and accounts for and distributes the money to the heirs. If there is no family member who is able to act, a state will appoint a public trustee or administrator to do the job.
The simple answer is that wills made without lawyers can be legally sound if the proper procedures-especially those governing witnesses-are followed. The books and computer software on the market can guide you on issues you might want to address and on proper procedures. For people with relatively simple estates a do-it-yourself will may work fine.
That said, we don't recommend doing without a lawyer. Just making a valid will won't insure that your exact intentions will be carried out. This area of the law-called estate law-has many wrinkles and complexities, often arising from variations in state law. There are many potential pitfalls, particularly when jointly owned property or spouse's inheritance rights are involved. Even with small estates, you can best make sure that your property will be disposed of according to your wishes by consulting an attorney.
As a general rule, a valid will can't be made by a person whose mind has deteriorated to the point of not knowing who his or her family is or what property he or she owns. The same is true for a person who is physically incapable of communicating. The best way to protect such a person's assets is to have him or her declared "incompetent" in a special proceeding.
An animal-lover cannot make a bequest to a pet, or set up a trust in its name. But he or she can set up a trust for someone who will care for the pet, or bequeath money to the animal's caretaker in a will.
Yes, but courts look at bequests such as these and decide whether following them would violate "public policy"-things the court thinks the state wants to foster or discourage. It's likely that a requirement that someone marry a Catholic would be upheld, since that probably wouldn't be seen as a significant restraint on the ability to marry (marriage tends to be seen as good public policy)-though you never know until the court decides. But a will provision that requires someone to divorce a present spouse or remain unmarried would probably be deemed unenforceable.
There are many reasons for changing a will-the birth or death of beneficiaries, the death of the named executor or guardian, or changes in the property you own. Some people have petty or vindictive reasons for changing a will, or may want to cut someone out of a will after a falling out. And sometimes people simply change their minds.
The best way is to make a new will, even if changes are slight, and to make sure it clearly states that all previous wills are invalid. While you can change just one part of a will with a document called a codicil-an amendment that must be signed and witnessed just like a will-this kind of shortcut can pose problems. If a person has his will bequest reduced or eliminated by a codicil, he usually gets court notice of this, which can lead to hurt feelings and, sometimes, a will contest.
Yes, because the changes made by a codicil have to be carefully integrated with the will. Also, you might want advice about whether an entirely new will is needed.
Nearly all states require that there be at least two witnesses, but some states require three, so, if in doubt, use three. Though a witness must be an adult, it's best to choose ones who are young enough that they are likely to be alive when the will goes through probate. Many states require all witnesses to be present when the will is signed. Even in states where this is not required, it is safer to do it this way to prevent problems in probate. Also, it's best to choose disinterested witnesses-people who won't get anything under the will. Using an interested witness won't invalidate the will, but the witness won't be allowed to take anything under it.
The original should be kept in a safe place, though not in your safe deposit box, because these are sometimes sealed when a person dies. The original can be filed with the Probate Court in the county where you reside. This is recommended.
You can leave your original will on file in your lawyer's office, with the clear understanding that you are free to remove it at any time. Law offices often have vaults for safe document storage. Some lawyers may urge keeping the will in their office to further the chance that they will be selected when it comes time to submit the will to probate. But even after the testator's death, the executor, and not the attorney, who drafted the will, is in control, and can pick whomever he or she wishes to act as counsel for the estate.