Wills & Probate

Q: What is a will?

 

A: A will is a legal document that expresses a person’s wishes for what should be done with his or her property after he or she dies. You can also use a will to appoint an executor, name a guardian for your children, set up property management for young beneficiaries, or forgive debts.

 

Q: What is probate?

 

A: Probate is the court process of wrapping up a deceased person’s estate. It’s the state’s way of making sure that the estate pays its debts and tax obligations and that estate property goes to the correct recipients. Probate is often time-consuming and expensive. It can be useful for some estates—especially those that are heavily in debt because it manages communications with creditors. But for most simple, straight-forward estates, probate is a waste of time and money.

 

By default, your estate will go through probate after you die. But with some planning, you can minimize your estate’s time in probate, or you may be able to avoid probate altogether. To keep property out of probate, instead of using a will, you can use other ways to transfer property–like living trusts, property ownership with rights of survivorship, and transfer-on-death deeds or designations. Property transferred through these types of devices does not go through probate. Also, most states have streamlined probate procedures for small estates—though “small” varies quite a bit by state. In any case, if you want to avoid probate, you have many options, but you’ll need to learn more about probate in your state or see an attorney for help.

 

Q: Who needs a will?

 

A: Most people should have a will. Even if you don’t think you need a will to distribute your property, you may need to make a will to name an executor or guardians for your children.

 

Q: What happens if I die without a will?

 

A: If you die without a will, state law will determine who will get your property—usually, this will be your “closest” relatives, like a spouse, parents, children, or siblings. Each state has its own formula for determining the portion these close relatives receive. If no relative can be found, the property goes to the state—but this rarely happens. Any debts owed by the estate will be paid before property is distributed to relatives. Dying without a will is called dying “intestate.”

 

Q: What are the requirements for making a will?

 

A: There are only a few requirements for making a legal will. These laws are set in state law. Here are the essentials:

• A will must be in writing.
• The will-maker must be at least age 18 (state laws vary slightly on this).
• The will-maker must have “testamentary capacity.“
• The will must be signed by the testator.
• The will must be signed by at least two witnesses who will not receive anything under the will.
• A will does not need to be notarized, however in many states, you can also make a “self-proving affidavit” which helps the will go through probate—and the affidavit must be notarized. A “holographic” will—one in the will maker’s own handwriting—does not need to be witnessed. But holographic wills are problematic and should only be used when making a formal will is not an option.