A will is a legal document in which a person, known as the testator, sets forth his or her wishes on how to distribute an estate’s assets, pay debts, care for any minor children and perhaps other issues after the individual dies. Most often, the testator appoints one or more executors to administer the estate and names guardians for minor children in a will. A will also might create one or more trusts and name the trustees.
Why Do I Need a Will?
When a person dies without a will, known as dying intestate, state law controls how the property in the estate will be distributed. Often, the property isn’t distributed how the deceased would have wanted. In many states, any children, whether adult or not, inherit one-third to two-thirds of the estate. The surviving spouse inherits the rest of the estate. In a will, you also can direct that a portion of your estate be donated to charity.
In addition, a court will appoint the executor, the guardians of minor children, and make other decisions the deceased could have made in a will.
A will doesn’t have to be prepared by a lawyer, though it is a good idea to use an attorney if your estate is valuable or complicated. Using an attorney is also a good idea if you have a blended family or plan to distribute the assets in a way most people won’t expect. The basic requirements of a valid legal will are below.
What Are the Minimum Requirements of a Will?
A will must meet several requirements to be valid in most states. Although the specifics vary from state to state, most states require the following:
If the requirements above are not satisfied, it is easier for someone to challenge, or contest, the will’s validity. Will contests most commonly are based on the grounds that the testator lacked testamentary capacity, was under duress or undue influence, or that the will didn’t reflect the actual intent of the testator, in entirety or in part.
Valid wills go through probate, which is the process in which a court of law determines whether the document is valid and authentic. Once the validity of the will is established, the probate court oversees the payment of debts, distribution of assets, and any other matters covered by the will.
Can a Will be Changed or Revoked?
A will should be reviewed every two or three years to determine if any part of it needs to be changed. It also should be reviewed after major life events, such as births, deaths, marriages and divorces.
A will can be amended or revoked by the testator at any time before death. Only the latest version of a will at the time of death is valid.
You can change a will by either writing and executing a new will or by amending it through a legal document known as a codicil. A codicil amends only one or more portions of the will and is less expensive and easier to draft than a new will. The risk of using a codicil is that the codicil becomes separated from the will and doesn’t make it to the probate court. A new will or a codicil should have specific language revoking all prior wills and codicils.
It’s also possible in most states to revoke a will by intentionally destroying the current version, by burning or tearing the physical document, or by striking out the signature. But you will want to execute a new will to avoid dying intestate.
In some states, revocation of all or part of a will occurs by law, such as when the testator gets married, divorced, has a child, or sells property named in the will.
Valuable contributions to this summary of “What is a Will and Why Do I Need One?” were made by Bob Carlson, editor of the Retirement Watch financial advisory service and chairman of the Board of Trustees of Virginia’s Fairfax County Employees’ Retirement System with more than $4 billion in assets.
Katie Kao is an editorial intern with Eagle Financial Publications.