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Everyone should have a will. A will is a legal document that describes how you want your property and belongings to be disposed of when you die: it tells the world "who gets what."
There are different types of wills, and there are certain requirements that must be met to make your will valid. Although you don't need a lawyer to make a will, the laws on making wills vary from state to state. So, it's probably a good idea for you get the advice of an attorney to make sure that your will complies with the laws of your state.
Types of Wills
A holographic will is handwritten, without witnesses. Only a few states recognize holographic wills.
Oral wills, also called "nuncupative wills," are only recognized in a few states and usually only in compelling situations, such as the impending death of a soldier in wartime.
A self-proving will is one that has been witnessed and signed with all the formalities required by state law.
Requirements for a Valid Will
Each state has formal requirements for preparing and signing a will. But, in general:
- You, as the "testator" (the person making the will), must be of legal age, usually 18
- You have to be of sound mind, or mentally competent, which means that you understand that you're making a will, you know what property you have, and you know your heirs and relatives who normally would be included in your will
- It must clearly state that it is in fact your will
- You must sign the will, and it must be witnessed by at least two or three witnesses - who usually have to be adults - and they must sign the will in each other's presence
What Should My Will Include?
Your will should specifically state:
- That you are of sound mind, or mentally competent as you are reading and signing the will
- The names, locations and dates of birth of your immediate family, including your spouse and all children, including adopted children
- The name of a guardian and alternate guardian for any minor children
- A list of who should inherit specific items of property. In some states, this is handled more informally with a separate list that can be frequently updated, which is kept with the will
- What happens to any property not specifically mentioned by you in the will
- The name of your executor or administrator. This is the person responsible for carrying out the directions you leave in your will, such as distributing the property and paying any debts and taxes owed by you after you die
Where Should I Keep My Will?
Keep your will in a safe place, like a bank safe deposit box or a fireproof safe at home, where it can be easily located after your death.
If you keep your will in a safe deposit box, you'll need to arrange for your executor to have access to the box after your death, like making him or her an authorized user of the box. But, check the laws of your area, because some states put a freeze on safe deposit boxes at death, and they can't be opened without the court's permission, even by authorized users.
When Should I Update My Will?
The most common reasons to update your will are when:
- You marry or divorce
- You give birth or adopt a child
- When a family member or other beneficiary of your estate dies
Revising a Will
You can change your will by:
- Making minor changes in what's called a codicil, which is a formal amendment to the will
- Revoking the current will and want to create a whole new one
What If I Don't Have a Will?
If you have a valid will at the time of your death, you die testate; if you don't have a will, then you die intestate. If you die without a will, your property and belongings will be distributed according the laws of the state where property is located. You'll have no control over "who gets what."
These same state laws will also determine who take care of your minor children if your spouse is not surviving.
Can I Leave My Spouse or Children Out of My Will?
In most cases, you can't completely disinherit your spouse, even if your will specifically says, "I leave my 'wife' nothing." Most states allow your spouse to elect against the will (i.e. forgo what they would get in the will and claim their inheritance under the state's intestate succession laws). The amount your surviving spouse would receive is set by the laws in your area
An exception to this is if you and your spouse have a valid, separate agreement like a prenuptial agreement stating that person isn't entitled to a share of your estate based on this agreement.
Adult children (over 18) can be disinherited. Your will has to state clearly that the disinheritance is intentional. If not, the courts will presume that you would want your child to benefit under your will.
As for minor children, even if your disinheritance is clear, most state laws require that they receive something from your estate as a means of support until they reach the age of maturity, which is usually 18.
Questions for Your Attorney
- If I can write my own will, why should I pay you to do it?
- How long is my will good for? Can it expire?
- Should I give a copy of my will to executor or my children?
- My ex-husband just died. He had a will made while we were married, but we can't find it now. What should we do?
Related Resources on lawyers.comsm
- Complete Will
- Codicil to Will
- Wills and Probate FAQ
- Types of Wills
- Beneficiaries in a Will
- Estate Planning articles and information
- Visit our Estates, Wills & Probate message board for more help