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Wills allow people to state their preferences about how their estates should be handled after their deaths. A well-written will eases the transition for survivors by transferring property quickly and avoiding many tax burdens. Despite these advantages, many Americans do not have valid wills. While contemplating one's mortality can be difficult, many people gain peace of mind by putting their affairs in order.
Wills vary from simple single-page documents to elaborate tomes, depending on the size of the estate and the preferences of the person making the will (the testator). Wills describe the estate, name the people who will receive specific property (the devisees) and can even provide special instructions about care of minor children, gifts to charity and formation of posthumous trusts. In each example, the formal legal rules for wills must be carefully followed to make the document effective.
Formal requirements for wills vary from state to state. Generally, 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. 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. The signature must be witnessed and/or notarized, although in some jurisdictions a will handwritten by the testator — referred to as a holographic well — is deemed valid even if unwitnessed. A valid will remains in force until revoked or superseded by a subsequent valid will. Some changes may be made by amendment (codicil) without requiring a complete rewrite.
Various legal restrictions may 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, which may be given 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. While non-dependent children generally may be disinherited, this preference should be clearly stated in the will in order to avoid confusion and possible legal challenges.
Some property may not descend by will. For example, property owned in joint tenancy may only go to the surviving joint tenant. Also, pensions, bank accounts, insurance policies and similar contracts that name a beneficiary must go to the named party.
A will usually appoints a personal representative (or executor) to perform the specific wishes of the testator after he or she passes on. The personal representative need not be a relative, although testators typically choose a family member or close friend. The chosen representative should be apprised of his or her responsibilities before the testator dies to ensure he or she is willing to undertake these duties. The personal representative consolidates and manages the testator's assets, collects any debts owed to the testator at death, sells property necessary to pay debts, taxes or expenses, and files all necessary court and tax documents for the estate.
A person who dies without a valid will or some alternative arrangements to distribute property may leave survivors facing a complicated, time-consuming and expensive legal process. When a person dies intestate, a probate court must step in to divide up the estate using legal defaults to give property to surviving relatives. The court pays any unpaid debts and death expenses first, then follows the legal rules set forth in state law. The rules vary depending on whether the deceased was married and had children, and whether the spouse and children are alive. If the intestate individual has no surviving spouse, children, parents or grandchildren, the estate is divided between various other relatives. Intestacy may mean that the testator's property goes to people who would never have been chosen — or who the testator did not even know. Additionally, state intestacy laws only recognize relatives, so close friends or charities that the deceased favored do not receive anything. If no relatives are found, the estate may go to the government in its entirety. Intestacy may also pose a heavy tax burden on estate assets.
Preparing to Meet with Your Estate Planning Attorney
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