Getting Around

Wills FAQ

What is a will?

A will is a legal expression or declaration of a person's mind or wishes as to the disposition of his property, to be performed and to take effect after his death. It is not a sheet of paper nor a number of sheets of paper but the written words thereon. It must be executed with the formalities required by statute only after the death of the maker.

Who may make a will?

Anyone who is of legal age and sound mind can make a valid will. You must be able to understand the nature of your estate and the consequences of making a will. You must be able to arrange an orderly scheme of distribution of your assets, and you must be acting voluntarily.

Do I really need a will?

Yes. If you die without a will, then you are said to have died "intestate." This means you died without leaving anything to testify as to what your wishes were regarding the disposal of your property.

Do most people make a will?

No. Only one out of four people leave a will when they die.

What happens if I don't leave a will?

If you died intestate, the state or court will appoint an executor for your estate. The Executor's responsibility will be to pay any just debts you may have outstanding and then distribute your remaining assets.

Does my estate automatically go to my spouse?

No. In most states, the surviving spouse receives one-third of the estate. The balance of the assets are equally divided among the surviving children.

What happens if I am not survived by a spouse or children?

The court will then assume that you wanted your estate to go to a family member. They will try to determine who should get your assets.

Can I leave my estate to someone who is not related to me?

Yes. You may choose a friend, your church, a charity, or even the state.

Can I choose an Executor for my estate?

Yes. Generally this is a person appointed by the testator (one who dies with will) to carry out the requests in the will. The person nominated as executor becomes "Executor" only when he takes oath and the will is admitted to Probate court.

Do I need an attorney to make my will?

It is an excellent idea to have an attorney write your wishes and desires in the form of a will because he can help and advise you as to the particulars of your estate.

Is it a legal requirement that a lawyer make my will?

In most states there is no law stating that a lawyer must draft your will. However, the formalities or conditions in regard to the method, order, arrangement, and use of technical expressions used in making the conveyances must be used. Therefore, a lawyer's assistance may be helpful.

If my circumstances change, am I bound to my original will?

No. You can make whatever changes you feel are necessary by destroying the original or revoking it with a new one. It is a good idea to review your will every few years.

Whom should I tell about my will?

It is a good idea to tell the executor of your will where the original is kept. In some states, a locked box in the bank is sealed upon your death and can only be opened after probate. Family members should be notified of the location of the will. It is prudent to leave a copy of your will with your attorney in case something happens to the original.