A will is a legal document used to state who will receive your property after you die. You can leave specific property or amounts of money to individuals or charities. You can also direct that your property be divided among different individuals or charities.
A will only takes effect after a person dies. It cannot be used as an incapacity planning document. Nor does a will give anyone an interest in property until the testator dies.
Who Can Make a Will?
Any person who is at least 18 years old and has sufficient mental capacity can make a will.
Click here for more on mental capacity to make a will.
Do I Need a Will?
Not everyone needs a will. For example, someone who does not own any property, or who owns everything jointly with a spouse may not need a will.
Here are some reasons you may want a will:
To control who receives your real and personal property after your death
To choose who will handle your financial affairs and distribute your property after your death
To name a guardian of your minor children
To waive bond so that your personal representative does not have to purchase a bond during the probate procedure
Click here for information on what happens if you die without a will.
Do I Need to Hire an Attorney to Do a Will?
There is no legal requirement that an attorney draft a will. If you choose, you can use a form will or draft a will yourself. However, we strongly recommend that you at least talk to an attorney about your will. Here are some reasons why you may want legal counsel:
To avoid using vague or confusing language
To ensure that the bond requirement is waived
To ensure that the will is "self-proved", meaning the witnesses will not have to testify in court
To ensure that alternative people are named in case your first choices pass away before you
To ensure that your will is validly executed and will stand up in court
To ensure that you do not inadvertently disqualify someone from receiving government assistance such as disability benefits or Medicaid
You can leave your property to anyone you choose. The only person you cannot totally disinherit is your spouse.
If you wish to disinherit one or more of your children, you should expressly state your intention in your will. Some people choose to leave $1.00 to a disinherited child to make it clear that the child was not left out of the will by accident.
Can I Change My Will?
As long as you have sufficient mental capacity, you can revoke or change your will. If you want to make changes to your will, DO NOT WRITE ON THE ORIGINAL WILL! Instead, you can execute a separate document, called a codicil, in which you describe the changes you want to make. This codicil must be signed and witnessed just like a will.
You can revoke your will by executing a new will or by physically changing the original will to show it has been revoked. For example, you can write "Revoked" across your original will. It is a good idea to keep the original will to show that it has been revoked.
It is generally a good idea to review your will after major life changes, such as births and deaths in the family, if you move to another state, or if your financial or marital status changes.
What Happens To My Will After I Die?
A will must be probated. Generally, the person named in the will as the Personal Representative submits the will to the court. If the will is valid, the judge will appoint a Personal Representative to start the probate procedure.
Click here for more on probate and avoiding probate.
