Estate Administration: The Will After Death

Wills are the most common way for people to state their preferences about how their property should be handled after their death. A will is similar to an instruction booklet for the probate court, the court that oversees estate administration and disputes over the will itself. The will provides the court with guidance as to how to distribute the deceased person's assets in accordance with his or her wishes.

In and Out of Probate

Wills have been referred to as "tickets to probate court." In large estates, the only way to legally transfer assets in accordance with the will is through the probate process. However, wills only control probate assets, that is, those assets that can be transferred by the probate court. Some assets do not have to be probated and generally are not controlled by a will. These assets include:

• Life insurance proceeds, which are paid to the beneficiaries designated in the policy.
• Property held in joint tenancy, which provides that, upon the death of one joint tenant, the deceased person's interest automatically passes to the surviving joint tenant(s).
• Property held in living trusts.

Because these assets are transferred by means other than the probate process, a will generally does not control how they are distributed.

Example: A person names her spouse in a beneficiary designation to receive her life insurance proceeds on her death. In her will, she names her sister to receive those same proceeds. Because the proceeds are paid directly to the spouse, they never become part of the deceased person's estate. Therefore, her will, which only controls her estate, cannot override the beneficiary designation.

Will Validity

A will must meet certain formal requirements in order to be valid, otherwise it may be challenged during the probate process. These requirements vary from state to state. Generally, the person making the will (the "testator") 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 have a typed or pre-printed document. A testator must sign his or her own will, unless he or she is unable to do so, in which case the testator must direct another person to sign the will in the presence of witnesses, and the signature must be witnessed and/or notarized. A valid will remains in force until revoked or superseded by a subsequent valid will. Some changes may be made by amendment (a "codicil") without requiring a complete re-write.

Will Limitations

Some legal restrictions prevent a testator from giving full effect to his or her wishes. Some laws prohibit disinheritance of spouses or dependent children. A married person cannot completely disinherit a spouse without the spouse's consent, usually in a prenuptial agreement. In most jurisdictions, a surviving spouse has a right of election, which allows the spouse to take a legally determined percentage (up to one-half) of the estate when he or she is dissatisfied with the will. Nondependent children may be disinherited, but this preference should be clearly stated in the will in order to avoid confusion and possible legal challenges.

Will Executors

A will usually appoints an executor or personal representative to perform the specific wishes of the testator after he or she dies. The personal representative consolidates and manages the testator's assets, collects any debts owed to the testator at death, sells property necessary to pay estate taxes or expenses, and files all necessary court and tax documents for the estate.

Dying Without a Valid Will: "Intestacy"

While wills may be "tickets" to go through the probate process, not having a will forces the probate court to distribute the property without guidance from the testator. Dying without a will leaves an estate