Writing a will

A will is a legal document that transfers your property after you die and names the people who will handle those bequests, care for your minor children if you have any, and act as trustees for any trusts your will creates.

A will must conform to the requirements of the state where it’s executed, or prepared, which should be the state where you have your primary residence. All states require that witnesses attest to the fact that you signed the will, but the number of witnesses required and who can serve in that capacity varies. So does whether or not someone who is named as an heir can serve as a witness.

The one thing on which all states agree is that you can’t disinherit your spouse as long as you’re legally married, unless there’s a legal pre- or post-nuptial agreement that provides otherwise. Most states require that you leave your spouse a certain percentage of your total estate, though the percentage varies from state to state. In community property states, it’s 50%.

What’s the Worry?

If you die intestate, which means without a will, you will have lost control over what happens to your property and perhaps your minor children if you are a single parent. Your estate will probably also have to spend a lot more to settle your affairs, meaning that less will be available to the heirs whom the court determines should receive the assets.

If you’re married and die intestate, your property will typically go to your spouse and any children of your marriage. Each state has a specific formula for dividing an estate without a will, with some giving a greater percentage to the spouse and others favoring the children. If you’ve been married more than once and have children from earlier marriages, the rules for dividing your estate could shortchange them in the absence of a will.

If you’re intestate and not married, chances are that the assets you intended to leave to a partner or friends or to charitable, religious, or educational institutions will go instead to relatives even if you were estranged.

The bottom line is that if you have no financial assets or minor children, you can justify waiting to make a will. Otherwise, you can’t. The reverse is true as well. The larger your estate and the more specific your wishes, the more essential a will becomes.

The Probate Question

Any property that is transferred by will is subject to probate, the legal process of proving, or verifying, a will in the appropriate state court. Small and uncomplicated estates are generally handled quickly, but in other cases the process can be slow and sometimes perverse. So probate has a bad reputation.

A clear, unambiguous will has the best chance of surviving the probate process without hassle or extra expense. It may also help to make clear what your will provides while you’re still alive, so that it doesn’t take your potential heirs by surprise. Advance warning doesn’t guarantee someone won’t contest your will, but it may help. And if there are things you want to do with your assets that may raise some hackles, there are other legal solutions. It’s important to work with an experienced attorney who specializes in trusts and estates to be sure things are handled in the most effective way.

You can’t avoid subjecting your assets to probate by not making a will. In fact, if you don’t have a will, you give the probate court (known in some states as surrogate’s court or orphans’ court) even more authority over your affairs. For example, the court will appoint an administrator to handle the transfer of assets. That person plays the role of the executor you would have named if you had written a will but it may be someone who has no personal connection to you or your family.

What You Leave by Will

You can transfer by will any property you own individually and any property you own as a tenant-in-common. But you can’t transfer jointly held property with rights of survivorship in this way. Your joint tenant or tenants assume ownership of your share at your death. If you have a joint bank account with your spouse and own your house jointly, those assets become his or hers when you die. The same is true with a partner, adult child, or friend, though the taxes that may be due will differ.

One of the advantages of joint ownership is that there’s no question about whose property it is. A widowed spouse or partner doesn’t have to move out of his or her home or be concerned that someone will contest the will. However, if your estate is large enough, there may be estate tax benefits from owning certain property exclusively in your own name. That’s something to confirm with your tax or legal advisor.

Remember, too, that you don’t transfer retirement plan assets by will. You must name beneficiaries (and ideally contingent beneficiaries as well) for 401(k) or similar employer plans, for individual retirement accounts (IRAs), and for annuity contracts. The beneficiaries may be the same as those you choose to inherit your estate, but the transfer method is different.

Leaving People Out

With the exception of your spouse, and, in Louisiana, your children, you’re under no obligation to name people as heirs. If you choose to omit people who expect to inherit, it’s generally best to say specifically that you are leaving them out. That undercuts the potential claim that you simply forgot to include them.

But in this case, as with any issue that might create controversy, it’s smart to get expert legal advice before rather than after it becomes a problem.

If you’re still reluctant to prepare a will, remember that, until the moment of your death, you can always change the provisions or amend it using a legal codicil to reflect your new thinking. 


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