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Wills FAQ
What you need to know about wills -- the most
basic estate planning document.
What's Below:
What happens if I die without a will?
What makes a will legal? Do I need a lawyer to
make my will?
I don't have much property. Can't I just make a
handwritten will?
Can I use my will to name a guardian to care for
my young children and manage their property?
Must I leave something to my spouse and
children?
Can someone challenge my will after I die?
How do I choose the right product to help me
make a will?
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. Generally, it will go to your
spouse and children or, if you have neither, to
your other closest relatives. If no relatives
can be found to inherit your property, it will
go to the state.
In addition, 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 to do so.
If you are part of an unmarried same-sex
couple, your surviving partner will not inherit
anything unless you live in one of the few
states that allows registered domestic partners
to inherit like spouses: California,
Connecticut, Maine, New Jersey, and Vermont.
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What makes a will legal? Do I need a
lawyer to make my will?
Any adult of sound mind is entitled to make a
will. Beyond that, there are just a few
technical requirements a will must fulfill:
- The will must be signed by at least two
witnesses. The witnesses 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. (If your state allows "holographic"
wills, you don't need witnesses.)
- You must date and sign 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.
You do not have to record or file your will
with any government agency, although it can be
recorded or filed 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.
A lawyer does not have to write a will, and
most people do not need a lawyer's help to make
a basic will -- one that leaves a home,
investments, and personal items to your loved
ones, and, if you have young children, that
names a guardian to take care of them. Creating
a basic will rarely involves complicated legal
rules, and most people can create their own will
with the aid of a good software program or book.
But if you have questions that aren't answered
by the resource you're relying on, or your
situation is unusual, it may be worth it to see
a good lawyer. For more information, see Nolo's
articleMaking a Will:
Are Lawyers Optional?
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I don't have much property. Can't I just
make a handwritten will?
Handwritten, unwitnessed wills, called
"holographic" wills, are legal in about 25
states. To be valid, a holographic will must be
written and signed in the handwriting of the
person making the will; in some states it must
also be dated. Some states allow you to use a
fill-in-the-blanks form if the rest of the will
is handwritten and the will is properly dated
and signed.
A holographic will is better than nothing if
it's valid in your state. But a will signed in
front of witnesses is better. If a holographic
will goes before a probate court, the court may
be unusually strict when examining it to be sure
it's legitimate. And if you don't have guidance
-- from a good self-help resource or a good
lawyer -- it's easy to write something that
turns out to be ambiguous or even contrary to
what you intended.
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Can I use my will to name a guardian to
care for my young children and manage their
property?
Yes. If both parents of a child die or become
otherwise unable to care for a minor child,
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 both name the same person.
You can choose that same guardian to manage
property that you leave to your minor children
or you can name someone different. You can name
a "property guardian," a "custodian", or a
"trustee" to manage the property:
- Name a property guardian.
You can simply name a property guardian to
manage whatever property the child inherits,
if there's no other mechanism (a trust, for
example) to handle it. The guardian will
manage the property until the child reaches
the age of 18.
- Name a custodian under the Uniform
Transfers to Minors Act (UTMA). In every
state, except South Carolina and Vermont,
you can choose 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, and 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 to name
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.
You name a trustee to decide what each child
needs and to spend money accordingly.
For more information, see
Leaving an Inheritance for Children.
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Must I leave something to my spouse and
children?
Disinheriting spouses. The law
protects surviving spouses from being left with
nothing. If you live in a community property
state (Arizona, California, Idaho, Louisiana,
Nevada, New Mexico, Texas, Washington, or
Wisconsin -- or Alaska if you have made a
written community property agreement), 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.
If you don't plan to leave at least half of
your property to your spouse, either through
your will or outside it, you should consult a
lawyer -- unless your spouse willingly consents
in writing to your plan.
Disinheriting children. Generally,
it's perfectly 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.
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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 a share of the
deceased person's property. 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.
For more information on how a will can be
challenged in court, see
Grounds for Challenging a Will .
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How do I choose the right product to help
me make a will?
Nolo offers several products to help you make
your will. Which one you should use depends on
the size of your estate, how you want to leave
your property, and whether you prefer to use
software or a good old-fashioned book.
Quicken
WillMaker Plus is ideal for nearly any size
estate and almost any estate plan. Use this
product if you are comfortable using computer
software and if you also need other estate
planning documents, such as trusts, health care
directives, or powers of attorney --
Willmaker comes with all of those as well
as many other useful forms.
Nolo's Online
Will allows you to make your will online,
now or anytime. Just log in, answer questions
about yourself and your property, and print!
Nolo provides expert guidence and help along the
way.
Nolo's Simple
Will Book is better for those who prefer to
use a book with word-processing documents on
CD-ROM. Nolo's Simple Will Book allows
you to customize a will to your circumstances
and is appropriate for those with small to
moderately sized estates and simple estate
planning goals.
The Quick and
Legal Will Book is best if you have a small
estate, simple estate planning goals, and prefer
to use a book with word processing documents on
CD-ROM. The Quick and Legal Will Book
offers a choice of five basic will forms.
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