A will is a written communication by a person stating how they want their property disposed of at death. In most states, an oral will, even if tape recorded, is not valid. A will must be signed, and at the signing there must be witnesses.
A trust is a legal property interest held by one person (trustee) for the benefit of another (beneficiary).
Specific requirements depend on the state where the person drafting the will lives. An estate planning attorney will draft your will so that it will be valid even if you move to a different state or a different country:
If you die without a will, you are considered intestate. Every state has rules for distributing your property should you die intestate. Usually, the spouse and children will take the property.
A great deal of will drafting can be done by someone who takes the time to learn the local laws dealing with wills. People usually need an attorney, at least for a consultation, to answer some of the finer points of will drafting. In a straightforward situation, a simple form is the answer. However, if you have specific issues that are important to you and your family, consulting an estate planning attorney can save a lot of money and headaches.
Yes. A new will, or an amendment to an existing will (called a codicil) can be executed to change the disposition of your original will. Be aware that if you change a portion of your will, your state law may consider the whole will republished. Republished means that the date of the change becomes the date that the whole will is considered to be written.
A will can name a guardian if both parents die while the child is still a minor. A court is not required to appoint the guardian you choose (if for some reason the guardian has become unfit, and it would not be in the best interests of the children, a court will not place children with that guardian). A will may be the only way you have to name a guardian for your children.
A personal representative is the person who will represent the estate. The traditional name for a personal representative is executor (or executrix if female). A person appointed by the court to represent the estate if the deceased doesn't have a will is known as an administrator.
Community property, also known as marital property, is (as of 2004) recognized in Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington and Wisconsin, but there is no uniform community property law. In the above mentioned states, property is basically divided into two categories: community property or separate property. If you have lived in one of these states while married, property that became community property in that state retains that character even if you move to a non-community property state:
When one spouse dies leaving a will, his or her share of the community property will go to the beneficiaries named therein. Who inherits community property when there is no will varies from state to state. In some states, the surviving spouse inherits the property, and in other states the decedent's share goes to his or her descendants.
Probate is the court process that administers your estate as provided in your will. Probate verifies your will and sets up the distribution of the remaining estate. Probate can often be quite expensive, and take a significant amount of time. It is important to consider the impact of probate on those that you are leaving property to in your will. See avoiding probate to learn about alternatives to probate that may save your estate money.
You can contest a will by filing the appropriate papers in probate court. The person who is contesting the will must be interested, which means that person is an heir to the estate, either in the will or as a matter of law. The time limits for contesting a will vary from state to state.
The grounds for contesting a will are defined by state law. Examples of valid grounds include incapacity, fraud, undue influence and duress.
A holographic will, or handwritten will, is still recognized in about 25 states. The person leaving the will must write the will in his/her own handwriting, and sign the will. Some states allow fill-in-the-blank forms, as long as there is some part of the will that is handwritten and it is signed. Normally, witnesses are not required for a holographic will.
It is not necessary to file your will with any government agency. As long as you keep your will in a safe place, and make sure the executor of the will knows its location, your will is valid.
If you need to draft a will or other estate planning document, you should contact an experienced estate lawyer.
Last Modified: 07-15-2014 12:00 PM PDTLaw Library Disclaimer
We've helped more than 4 million clients find the right lawyer – for free. Present your case online in minutes. LegalMatch matches you to pre-screened lawyers in your city or county based on the specifics of your case. Within 24 hours experienced local lawyers review it and evaluate if you have a solid case. If so, attorneys respond with an offer to represent you that includes a full attorney profile with details on their fee structure, background, and ratings by other LegalMatch users so you can decide if they're the right lawyer for you.