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Legal Wills: The Basics

Who should make a will?
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.

Aren't there some people who really don't need to worry about drafting a will?
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.

What happens if a person dies without a will?
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.

What is the process if there is no will?
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.

Is a lawyer necessary for drafting a will?
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.

Can someone who is senile or incapacitated write a will?
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.

Can a person leave money to a pet?
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.

Can bequests be conditional on a person doing--or not doing--something?
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.

Why might people want to change their wills?
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.

What's the best way to change a will?
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 which 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.

Is it advisable to have a lawyer to make a change in a will?
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.

How many witnesses are necessary?
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 chose 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.

Do wills have to be notarized?
Usually not. Proper witnessing is the important thing. However, in order to avoid the cumbersome process of requiring the executor to track down the witnesses, many states, including New York and New Jersey, allow self-proving wills: wills accompanied by a sworn statement from witnesses, signed before a notary public. Acceptance of these sworn statements--or affidavits--is not automatic, and the probate court is more likely to respect them if the will execution was supervised by an attorney.

If the will is challenged, witnesses may be called into court to testify as to whether the testator (the person who wrote the will) signed the will voluntarily, understood what was being signed, declared the document to be his or her will, and asked the witnesses to sign. Recently people have been videotaping themselves as they sign their wills, which may provide additional evidence of their competence. However, this is not a legal requirement--nor is it a legal substitute for witnesses. If a will is made with no witnesses (even if you videotape it), it will be declared invalid in almost every case.

A few states allow unwitnessed handwritten documents, called holographic wills, to be admitted to probate, but this a very risky course, since almost all courts will be very reluctant to accept them.

Where should original wills be kept?
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.

If you don't leave your will with your attorney, 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.

Is it ok to have photocopies of wills?
It may be useful to have a photocopy of your will, so you don't have to go to the trouble of getting the original out of safe storage. It's best to write "COPY" clearly on any photocopy and to leave copies unsigned, so there's no confusion with the original.

What are the essentials that make a will valid?

• The will must be in written form. A videotape recording of your wishes won't do.
• It must be signed by the person making the will.
• It must be signed by two (or, in a few states, three) competent witnesses.
• The will-maker, or testator, must be competent--not insane, senile, or mentally disabled--and not acting under duress or under the controlling influence of another person.

Other things, while not vital, would be wise to have in almost any will:

• A clause revoking all previous wills.
• Names of all beneficiaries (people to whom you wish to leave property), along with what you wish to leave them, and who gets the property if that beneficiary dies before you. Another term for beneficiary is legatee.
• If you have minor children, the name of a guardian for them if your spouse does not survive you, and, if need be, a guardian or a person to manage the child's assets.
• The name of an executor (sometimes called a personal representative) and, if needed, trustees for any trusts created by the will.
• A statement naming a residuary legatee for the residue of the estate. The residue is the portion of the estate left after bequests of specific items of property are made. In fact, the residuary estate is often the largest portion of the estate, and the person or people who get it are those the deceased intended to get the most. The executor may also use the residuary estate pay fees and taxes.
• A statement eliminating bonds. Many states require executors and trustees to post a bond (usually paid out of estate funds) to guarantee that they complete the job properly. You can save them this expense by stating that no bond is needed.

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AEPAD is the American Estate Planning Attorney Directory.  While the information on this site deals with legal issues, it does not constitute legal advice. If you have specific questions related to information available on this site, you are strongly encouraged to consult an attorney who can investigate the circumstances of your situation and the particulars in your state.