Trusts and Estates

Wills and Probate FAQ

Reviewed by Betsy Simmons Hannibal, J.D., Golden Gate University School of Law
Here are simple answers to commonly asked questions about wills and probate.

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Q: What is a will?


  • A: A will is a legal document that expresses a person’s wishes for what should be done with his or her property after he or she dies. You can also use a will to appoint an executor, name a guardian for your children, set up property management for young beneficiaries, or forgive debts.


Q: Who needs a will?


  • A: Most people should have a will. Even if you don’t think you need a will to distribute your property, you may need to make a will to name an executor or guardians for your children.


Q: What happens if I die without a will?


  • A: If you die without a will, state law will determine who will get your property—usually, this will be your “closest” relatives, like a spouse, parents, children, or siblings. Each state has its own formula for determining the portion these close relatives receive. If no relative can be found, the property goes to the state—but this rarely happens.

    Any debts owed by the estate will be paid before property is distributed to relatives.

    Dying without a will is called dying “intestate.”


Q: Who should draft my will?


  • A: You can make a will yourself, or you can have an attorney draft onefor you. If you make your own will, use a high-quality do-it-yourself product that keeps up to date with state-specific laws.


Q: What are the requirements for making a will?

  • A: There are only a few requirements for making a legal will. These laws are set in state law. Here are the essentials:

    • A will must be in writing.
    • The will maker must be at least age 18 (state laws vary slightly on this).
    • The will maker must have “testamentary capacity.“
    • The will must be signed by the testator.
    • The will must be signed by at least two witnesses who will not receive anything under the will.

    A will does not need to be notarized, however in many states, you can also make a “self-proving affidavit” which helps the will go through probate—and the affidavit must be notarized.

    A “holographic” will—one in the will maker’s own handwriting—does not need to be witnessed. But holographic wills are problematic and should only be used when making a formal will is not an option.


Q: Can I appoint a guardian for my children in my will?


  • A: Yes. A will is the best place to indicate who should be your child's guardian. Keep in mind however, that courts will not automatically appoint the person you name. A court will always consider your choice, but it will also assess the situation and then appoint the person it thinks will do the best job for your child. Also, if your child has another living parent, that parent will care for the child—the court will not name a guardian unless that other parent is found to be unfit.


Q: Can I dispose of my property in any way I wish?


  • A: Yes, for the most part you can give your property away however you wish, but there are a few exceptions. Your spouse may have a right to some of your property, and your children may be able to claim some of your property unless you expressly disinherit. Also, your estate will have to pay any debts that you die owing, and those debts will be paid before any property is passed to your named beneficiaries.


Q: Is joint tenancy a substitute for a will?


  • A: You can use joint tenancy to transfer property to a cotenant without probate, but using this method to transfer property is not a substitute for having a will. Using joint tenancy raises significant tax and ownership issues that are very different from the issues raised by passing property through a will.

    Also, while joint tenancy will keep the property out of probate, it won’t allow you to appoint an executor, name guardians for your children, or create property management for young beneficiaries—all things you can do in a will.


Q: Must the will be read to the family?


  • A: No. The representative of an estate normally must provide notice of probate to all interested parties, but this notice is usually made by mail. A family can choose to read the will as a group, but doing so not required it is rarely desired. Also, there is nothing private about a will that would require it to be controlled or read by an attorney or other representative. In fact, when a will goes through probate, it becomes a public document – so literally anyone can read it or have a reading of it.


Q: Can I change my will?


  • A: During your lifetime, you can change your will as long as you retain your remain “of sound mind.”

    To change your will, do not just mark up the hard copy your current will. Markings added after the original will can indicate foul play and it could cause problems. Instead, for small, simple changes – like changing the amount of a cash gift or changing the name of your executor -- you can make a will codicil, which is an add-on amendment to a will. If you want to make more significant changes, make a new will instead of amending your old one.


Q: How do I contest a will?



Q: What is a personal representative?


  • A: A personal representative is the person who wraps up the estate of a person who has died. In some states, the person who does this job is called the “executor.” When a personal representative is appointed by the court (rather than named in a will), he or she may be called the estate’s “administrator.”


Q: What are the executor or personal representative's duties and obligations?


  • A: A personal representative must follow state law to wrap up the decedent's affairs. The main duties include:

    • Giving the proper notices to the proper parties
    • Collecting all the decedent's property
    • Receiving claims against the estate
    • Paying just claims and disputing others
    • Selling estate property, as needed
    • Distributing the estate property according to the will or state law


Q: Can I name more than one person to be the personal representative for my estate?


  • A: Yes. You may appoint corepresentatives to wrap up your estate. However, doing so isn’t always a wise choice.

    Having more than one representative can create problems if they are not able to work well together.

    A better idea is to name one representative and then one or two alternates, who can serve if the first choice is not able or available to serve.


Q: Does my personal representative have to live near where I live?


  • A: A few states require a personal representative must live in the same state as the deceased person, but most states allow personal representatives to live out-of- state. In some cases, out-of-state representatives face additional restrictions—for example, they may have to be a blood relative, post a bond, or appoint an in-state representative to do certain tasks.


Q: Why must an estate go though probate?


  • A: Probate is the court process of wrapping up a deceased person’s estate. It’s the state’s way of making sure that the estate pays its debts and tax obligations and that estate property goes to the correct recipients. Probate is often time-consuming and expensive. It can be useful for some estates—especially those that are heavily in debt, because it manages communications with creditors. But for most simple, straight-forward estates, probate is a waste of time and money.

    By default, your estate will go through probate after you die. But with some planning you can minimize your estate’s time in probate, or you may be able to avoid probate all together. To keep property out of probate, instead of using a will, you can use other ways to transfer property--like living trusts, property ownership with rights of survivorship, and transfer-on-death deeds or designations. Property transferred through these types of devices do not go through probate.

    Also, most states have streamlined probate procedures for small estates—though “small” varies quite a bit by state.

    In any case, if you want to avoid probate, you have many options, but you’ll need to learn more about probate in your state or see an attorney for help.

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