Making a Will FAQs

What is the purpose of preparing a will?

A will is a legal document that determines who will inherit an individual’s property upon the individual’s death. Recipients often include the spouse, children, grandchildren or charitable organizations. A will can also contain a provision that designates a guardian to care for the children.

What happens to my property and my children if I die without preparing a will?

If a person dies without a will or another legal distribution device, a state’s laws of intestate succession govern inheritance rights.

The intestacy laws usually gives the first rights to inherit to the decedent’s spouse (or domestic partner is some states) and children. If the decedent did not leave a spouse or children, close relatives like parents, siblings, and grandparents will inherit the property. If the decedent has no relatives that qualify under a state’s intestate succession laws, the state receives the property. If a parent of minor children dies without a will and the other parent is unable to provide care, the state determines who will become the guardian of the children and the property they inherit.

Do I need a lawyer to create a valid will?

No. Laws do not require a lawyer when making a will. There are read-made forms available or software or books that may help you with the process. However, some situations may call for the help of a lawyer, especially if the estate is large enough or there are complex issues surrounding it.

Can I make a handwritten will?

That depends upon the laws of the state whether they will accept a handwritten will. Handwritten wills are also called holographic will which do not require witnesses, unlike printed wills. Some states may require for the entire holographic will to be handwritten, while others may allow for a partially-handwritten one as when a testator fills in the blanks of a form. However, handwritten wills may create complications. Many probate courts are hesitant to recognize the validity of these wills since they are difficult to verify.

How do I make a will valid?

When preparing a will, most states require the following elements:

  • The testator is at least 18 years old and of sound mind;
  • The inclusion of a statement that the document is the testator’s will;
  • The will is typed or computer-printed, except in the case of a handwritten will;
  • The will must have at least one provision that disposes of property or a provision that appoints a guardian for minor children;
  • The appointment of an executor; and
  • The testator and at least two witnesses signed the will.
  • The testator should adhere to the following guidelines when signing a will and selecting witnesses:
  • The testator must sign and date the end of a typed or computer-printed will in ink;
  • The signature should match the name that appears in the will;
  • The witnesses must see the testator sign the will;
  • The witnesses must also sign the will;
  • The witnesses should be at least 18 years old; and
  • The witnesses must not be beneficiaries in the will.

It is unnecessary to have a will notarized but doing so may simplify probate proceedings.

Can I name a guardian for my children in my will?

Yes. You may name a personal guardian for your minor children if both parents die or if the surviving spouse is not capable of taking care of the children. The personal guardian will have legal guardianship over the minor children until they reach the age of 18. Because minors cannot own property, it is also important to select a person to manage the children’s property.

Can I disinherit my spouse?

In community property states, a spouse is legally entitled to half of the property acquired or earned during the marriage so a spouse can only dispose of one half of the interest to the property.

In states where common law governs inheritance laws, a person may choose to disinherit a spouse through a will. However, common law states protect the surviving spouse from complete disinheritance by granting the right of the spouse to claim some portion of the deceased spouse’s property by going to court.

How do I revise my will?

A testator can revise a will by either preparing a new will or adding a codicil. A codicil may suffice for minor changes or additions such as addition of a beneficiary. However, if there are substantive changes in a will, revoking a will and preparing a new one may be advisable.

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