Estate Planning and Probate FAQ

What are the advantages and disadvantages of having a trust instead of a will? How can a person change a will? Is there any way a will would not be given effect after the testator's death? What is a community property state and how does it affect estate planning? What are some common issues connected with nursing home care? What is probate and how does it work? What are some of the tax consequences of estate planning? How does a grantor choose a trustee? How can a person leave property to minor children? What are some of the fiduciary responsibilities owed by a trustee to the beneficiaries? Learn More: Estate Planning

What happens if I die without a will?

What happens if I die without a will?

If you don't make a will or use some other legal method to transfer your property when you die, state law will determine what happens to your property. Generally, it will go to your spouse and children or, if you have neither, to your other closest relatives. If no relatives can be found to inherit your property, it will go to the state.

In addition, in the absence of a will, a court will determine who will care for your young children and their property if the other parent is unavailable or unfit.

If you are part of an unmarried same-sex couple, your surviving partner will not inherit anything unless you live in one of the few states that allows registered domestic partners to inherit like spouses: California, Connecticut, Maine, New Jersey, and Vermont.

What makes a will legal? Do I need a lawyer to make my will?

Any adult of sound mind is entitled to make a will. Beyond that, there are just a few technical requirements a will must fulfill:

• The will must be signed by at least two, or in Vermont, three, witnesses. The witnesses must watch you sign the will, though they don't need to read it. Your witnesses, in most states, must be people who won't inherit anything under the will. (If your state allows "holographic" wills, you don't need witnesses.)
  
  
• You must date and sign the will.

You don't have to have your will notarized. In many states, though, if you and your witnesses sign an affidavit (sworn statement) before a notary public, you can help simplify the court procedures required to prove the validity of the will after you die.

You do not have to record or file your will with any government agency, although it can be recorded or filed in a few states. Just keep your will in a safe, accessible place and be sure the person in charge of winding up your affairs (your executor) knows where it is.

You are not required to have lawyer draft a will for you, and most people do not need a lawyer's help to make a basic will -- one that leaves a home, investments, and personal items to your loved ones, and, if you have young children, that names a guardian to take care of them. Creating a basic will rarely involves complicated legal rules, and most people can create their own will with the aid of a good software program or book. But if you have questions that aren't answered by the resource you're relying on, or your situation is unusual, it may be worth it to see a good lawyer. For more information, see Do I Need a Lawyer to Make My Will?

Must I leave something to my spouse and children?

Disinheriting spouses. The law protects surviving spouses from being left with nothing. If you live in a community property state (Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, or Wisconsin -- or Alaska if you have made a written community property agreement), your spouse automatically owns half of all the property and earnings (with a few exceptions) acquired by either of you during your marriage. You can leave your half of the community property, and your separate property, to anyone you choose.

In all other states, a surviving spouse has a legal right to claim a portion of your estate, no matter what your will provides. But these provisions kick in only if your spouse goes to court and claims that share.

If you don't plan to leave at least half of your property to your spouse, either through your will or outside it, you should consult a lawyer -- unless your spouse willingly consents in writing to your plan.

Disinheriting children. Generally, it's perfectly legal to disinherit a child. If, however, it appears that you didn't mean to disinherit a child -- the most common example is a child born after you made your will -- then the child has the right to claim part of your property.

Copyright © 2007 Nolo

Copyright © 1994-2006 FindLaw, a Thomson business

DISCLAIMER: This site and any information contained herein are intended for informational purposes only and should not be construed as legal advice. Seek competent legal counsel for advice on any legal matter.

View Previous Months' Selections