Wills FAQ
What you need to know about the most basic estate planning document.
What's Below:
What happens if I die without a will?
Can I use my will to name somebody to care for my young children in case someday I can't?
Can I leave property to young children in my will?
Must my will leave something to my spouse and children?
Do I need to file my will with a court or in public records somewhere?
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. It will go to your spouse and children or, if you have neither, to other relatives according to a statutory formula. (Only one state, Vermont, lets surviving registered domestic partners inherit just like surviving spouses. California will allow it as of July 1, 2003.) 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.
Can I use my will to name somebody to care for my young children in case someday I can't?
Yes. If both parents of a child die while the child is still a minor, another adult -- called a "personal guardian" -- must step in. The personal guardian will be responsible for raising your children until they become legal adults.
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.
What makes a will legal?
Any adult of sound mind is entitled to make a will. If you're reading this article, you're of sound mind. Beyond that, there are just a few technical requirements (unless it is a valid holographic will):
- 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, in most states, 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.
Can I leave property to young children in my will?
Children under 18 can inherit property -- but if it's anything valuable, an adult must manage it for them. You can use your will to name someone to manage property you leave to minors, avoiding the need for a court to appoint and supervise a guardian. Here are four simple ways to structure a property management arrangement:
- Name a custodian under the Uniform Transfers to Minors Act. In every state except South Carolina and Vermont, you can choose someone, called a custodian, to manage property you are leaving to a child. The custodian will step in to manage the property until the child reaches the age specified by your state's law -- 18 in a few states, 21 in most, 25 in several others.
- Set up a trust for each child. You can use your will to create a trust for any property the child inherits, and name someone (called a trustee), to handle the trust property until the child reaches the age you specify.
- Set up a "pot trust." 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. The trustee decides what each child needs, and spends money accordingly.
- Name a property guardian. If you simply name a property guardian for your child, this person will manage whatever property the child inherits, if there's no other mechanism (a trust, for example) to handle it.
Must my will leave something to my spouse and children?
Spouses
The law protects surviving spouses from being left with nothing.
If you live in a community property state (Alaska (only if you have made a written community property agreement), 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 leave your half of the community property, and your separate property, to anyone you choose.
In all other states, a surviving spouse has a legal right to claim a portion of your estate, no matter what your will provides. But these provisions kick in only if your spouse goes to court and claims that share.
Children
Generally, it's legal to disinherit a child. If, however, it appears that you didn't mean to disinherit a child -- the most common example is a child born after you made your will -- then the child has the right to claim part of your property. Some states go further. 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.
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 someone challenge 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 it appears that you unintentionally overlooked them in your will.
To get an entire will invalidated, 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.