What is Wills Law?

Use these links to jump to different sections:

• Overview
• Common Questions for an Attorney
• Finding the Right Attorney for Your Needs
• Why Should I Talk to a Lawyer?

Wills are a key estate planning document that people in all financial situations can use to control the distribution of their property after their death. In addition to distributing your assets to beneficiaries, wills can also appoint a guardian for your minor children and name the person you want to administer your estate in probate court.

This overview covers the basics of wills. Get further general information about estate planning here. You can also learn more about the probate and estate administration process.

Overview

A last will and testament (or “will” for short) is a legal document you can use to control the distribution of your property after your death. Estate assets include all the property you own, including real estate, bank accounts, life insurance policies, retirement accounts, stocks and bonds, and other personal property.

If you die without a will, you are legally considered intestate, and your state’s intestate succession laws will control the distribution of your estate. State laws governing intestacy often do not match the individual’s wishes, so it’s wise to have a will in place that makes your plans clear.

There are different kinds of wills that work best for different goals. To make your will enforceable, you will need to make sure you follow some general guidelines and check with a lawyer about what is required in your state.

Types of Wills

Even if you do not have complicated assets or own a lot of property, you may still want to consider creating a will. Below are some of the most common types of will you may want to consider.

Simple Wills

A simple will is sufficient for most individuals with smaller estates or relatively straightforward assets. You can use a simple will to express your wishes about who should care for your minor children after your death and what should happen to your assets.

Testamentary Trusts and Pour-Over Wills

This is a provision in a will that creates a trust upon the death of the testator. The will should name someone to be the executor of the estate and instruct that person to create a trust. The beneficiary of this trust can be anyone, but it is common to use this type of will to create a trust for minor children.

Another type of will that is related to trusts is the pour-over will, which takes care of any property that was left out of a trust. One of the main advantages of a trust, whether a testamentary or living trust, is that they avoid the probate process. Learn more about different types of trusts.

Joint Wills vs. Mirror Wills

When spouses want to leave their assets to each other, one option is to use a joint will. This is one document that both spouses sign, each leaving the estate to the other, as an alternative to each spouse having their own will. Owing to the joint nature of these wills, the surviving spouse does not have latitude to change the will if new circumstances arise.

Because of this inflexibility, joint wills are often discouraged for married couples, and mirror wills are used instead. Mirrors wills are two separate wills, one for each spouse, that usually contain the same provisions and beneficiary designations. Each spouse leaves their estate to the other and names secondary beneficiaries who will inherit the estate from the last surviving spouse. Since each spouse has their own will, they can change the will as circumstances change.

Living Will

Despite the similarity of their name, “living wills” do not leave property or assets to other people. Instead, they set out your wishes and instructions for end-of-life medical treatment and life-saving measures. You can use a living will to express your desires about whether and for how long you should be left on life support. Living wills have no effect after death, so you should not use it to set out what should happen after your death. Learn more about living wills and powers of attorney.

Elements of a Legal Will

Wills can only be made by people with legal capacity and testamentary intent. This means people who have been ruled incapacitated by a court or minors who are under the age of legal capacity cannot create a legally enforceable will.

Additionally, people who create a will under duress or undue influence may not have the necessary capacity or intent. Intent to create a will usually should be expressed in the text of the will. You have probably seen it expressed as someone’s “last will and testament.”

Your will should be in writing. Some jurisdictions recognize handwritten or holographic wills as opposed to typed ones. However, before you decide to handwrite your will, you want to make sure that your jurisdiction recognizes them. Otherwise, you risk dying with an invalid will that will not be enforced in probate court. The problem with holographic wills is often that they are written or signed without witnesses, and it is difficult to verify that the testator actually wrote them in their entirety.

Finally, your will needs to be signed and witnessed. Jurisdictions don’t always require the same number of witnesses, but it is common that you will need at least two. In some jurisdictions, the requirements are more stringent and require your witnesses to watch you sign the will after you acknowledge what it is. Additionally, you may be able to get your witnesses to sign a self-proving affidavit attesting to the will’s validity. Self-proving affidavits generally must be notarized and can be used in probate court to prove a will’s validity. It’s important for you to make sure you understand your jurisdiction’s witness requirements so your will is enforceable.

What to Include in Your WIll

It is important that you name an executor or personal representative in your will. This is the person who will make sure your wishes are carried out. It is also wise to consider naming an alternative executor in case the first one dies or becomes otherwise incapable of serving.

Once you have picked the person who will execute your original will, you will want to make sure you include how your property and assets should be divided. Who gets what? What happens to assets that are not spelled out in the document? What happens if one of your beneficiaries dies before you? These are all questions that can be answered by your will.

Finally, if you have minor children, you may want to consider including a guardianship plan. This allows you to decide who will care for your children and who will manage their property while they are minors.

Common Questions for an Attorney

Below are some common questions you might want to consider when meeting with an attorney for the first time.

1. What type of will is right for me?
2. What are the legal requirements in my state for creating a valid will?
3. What if I don’t have a written will? Is an oral will sufficient?
4. How do I change an existing will?
5. What happens if I want to create a new will?
6. Will my estate be subject to estate taxes?
7. How do I pick a personal representative?
8. What happens if I die without a will?
9. How do I prevent certain family members from contesting my will?

Finding the Right Attorney for Your Needs

It is important to approach the right type of estate planning attorney—someone who can help you through your entire case. To do so, you can visit the Super Lawyers directory, and use the search box to find a lawyer based on your legal issue or location.

To help you get started, you may want to consider looking for an estate lawyer with experience creating wills.

Why Should I Talk to a Lawyer?

A lawyer can be helpful even if you think you have a straightforward estate. Not every type of will is right for your situation, and enforceability will depend on how well you follow the legal requirements. Lawyers know state-specific requirements and what type of will is best for your financial and familial situation.

A lawyer will be able to anticipate potential problems with your plan and advise you on how to approach them. Your lawyer will also keep track of deadlines and file all the paperwork with the necessary courts and agencies, giving you one less thing to worry about.