Making a Will FAQs
What is the purpose of preparing a will?
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.
What happens to my property and my children if I die without preparing a will?
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.
Do I need a lawyer to create a valid will?
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.
Some wills involve complex issues, however, so a person may benefit from the help of a lawyer when preparing their will. A lawyer can provide assistance in situations that involve the distribution of a multi-million dollar estate, the creation of a non-standard trust, or in a situation where the testator plans to disinherit a spouse.
Can I make a handwritten will?
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.
How do I make a will valid?
When preparing a will, most states require the following elements:
- The testator is at least 18 years old and of sound mind;
- The inclusion of a statement that the document is the testator's will;
- The will is typed or computer-printed, except in the case of a handwritten will;
- The will must have at least one provision that disposes of property or a provision that appoints a guardian for minor children;
- The appointment of an executor; and
- The testator and at least two witnesses signed the will.
The testator should adhere to the following guidelines when signing a will and selecting witnesses:
- The testator must sign and date the end of a typed or computer-printed will in ink;
- The signature should match the name that appears in the will;
- The witnesses must see the testator sign the will;
- The witnesses must also sign the will;
- The witnesses should be at least 18 years old; and
- The witnesses must not be beneficiaries in the will.
It is unnecessary to have a will notarized; however, doing so may simplify probate proceedings. See also What is a "Valid Will?"
Can I name a guardian for my children in my 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. Because minors cannot own property, it is also important to select a person to manage the children's property.
Can I disinherit my spouse?
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.
How do I revise my will?
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.