8 Frequently Asked Questions on Last Wills and Testaments

07/2023

Starting an estate plan can be overwhelming, and you probably have many questions. You are not alone. Below are eight questions people often ask about last wills and testaments as they begin to think about estate planning.

1. Aren’t Wills Only for Wealthy People?

This is a common myth. Last wills and testaments (also known simply as wills) are not just for the wealthy. In a will, you can outline who you want to receive your possessions when you die; this might include your money, your real estate, and items of sentimental value.

If you have children who have not yet reached adulthood, you also would be well advised to have a prepared a valid will in which you name a guardian. Even if you think you do not own enough property to justify a last will, it is important to create one expressing your wishes about how – and to whom – you want your property distributed at your death.

2. How Long Do Wills Last?

After taking the time to create a will, doing it again is probably the last thing you want to do. Fortunately, a last will does not expire.

However, your estate documents should always reflect your most recent property and life changes. For example, if you marry, divorce, have children, or acquire or lose property, reviewing and updating your last will and testament is prudent. Consider revisiting your will and other estate planning documents with an attorney at least every decade.

3. Is My Will Valid?

You should ensure that your last will and testament is valid based on your state’s law. Each state has specific requirements for wills, but generally, a person must be at least 18 years old to create a last will, and the document should be in writing, signed, witnessed, and notarized. This is why it is crucial to involve an experienced estate planning attorney in preparing these documents.

If you move to another state, a last will that satisfies the legal requirements in your current state may transfer to a new state. However, you should always consult with an experienced in-state estate planning attorney to review and update your will as needed.

4. Does All My Property Pass Through My Last Will?

Any property you own solely in your name can pass through your last will. However, you must list the property you wish to have passed to your heirs via your last will. If you leave property out of your will, it may pass on to your heirs, which can happen in several ways. If you have other estate planning documents (e.g., an irrevocable trust), the terms of those documents will govern how the property subject to it passes to your heirs.

If you die without a will, state law governs the disposition of your property through a body of law called intestate succession. Learn more about intestate succession below.

If you have children who are minors, you can appoint in your will the person you want serving as their guardian in the event of your death. Not having a will could mean that administering your estate incurs additional costs, diminishing any inheritance your kids may have otherwise had received. You may also consider detailing in your will any plans you have in place for your pets.

5. Does the Law Require Me to Have a Will?

No, although laws may vary from state to state; generally, the law does not require you to create a last will. However, if you die without a valid will, your state’s intestacy laws will govern who received your property. This means that any wishes you may have had for giving away certain assets to specific people in your life or to a charity you wanted to support will not be taken into consideration.

Dying without a will is called dying intestate. Intestate succession is a legal process under which a state’s intestacy laws dispose of an intestate person’s property. Intestacy laws vary depending on the state, but typically close relatives receive a share of an intestate person’s property. Your immediate family (i.e., your spouse, children, parents, and siblings) will often inherit first. If you do not have immediate family members, more remote relatives, like grandparents, may inherit your property through intestate succession.

6. Even if I Don’t Have a Will, Won’t My Spouse Automatically Get Everything if I Die First?

No, your spouse may not immediately inherit your property if you die without a last will. Usually, if your property passes through intestate succession and you are married with children, your spouse receives a spousal share of your estate. The amount of a spousal share can vary depending on your state’s laws.

7. What’s Wrong With a DIY Will?

Over the past several years, do-it-yourself last wills have become popular. However, you should be cautious about adding a DIY last will to your estate plan, as laws regarding estate planning are complex and can vary widely by state. Some common issues with DIY last wills include:

• A licensed attorney does not usually review them.
• They may not comply with legal requirements for creating a valid will that are specific to your state.
• It may not dispose of your entire estate.
• If you have a blended family or children who are not yet legal adults, or you own a second home or a business, a DIY will may not address all of your unique needs.

8. Do I Need More Than a Will?

A last will is an important part of your estate plan. It’s a good start, but it does not convey certain powers. You may want to consider supplementing it with other key estate planning documents. For example, suppose you become unexpectedly impaired during your lifetime and can no longer handle your own affairs or communicate your wishes. You would benefit from a health care directive that expresses your desires for any medical treatment you receive. With a durable power of attorney in place, you also can ensure that an individual you trust handles decision making regarding such matters as your financial, legal, and medical needs.

Despite the fact that everyone would benefit from having a will, the majority of Americans have not yet put together any type of estate plan. Consult your estate planning attorney to discuss how to get the most out of your estate plan.