Frequently Asked Questions: Wills


Last Modified: October 2009

 

Who needs a will? 

For all practical purposes, the following people need a will:

  1. Anyone that owns property, either real or personal, of substantial worth. 

  2. Anyone that has minor children. You can address guardianship and set up trusts within the will.

  3. Anyone with transferable interests in a business or other investment.

  4. People under age fifty who own property worth less than the threshold for federal estate taxes.

  5. People over the age of fifty. 

Why are there people without wills? 

There are several reasons why people do not have wills: 

  1. Lack of reliable information.

  2. Fear of making mistakes by doing it themselves.

  3. Don’t know they can prepare their own will. 

  4. The expectation of paying large amounts of money to a lawyer. 

  5. Procrastination.

  6. Superstition: some people feel that just thinking about death could somehow speed up their demise.

What happens if I die without a will?

A person that dies without leaving a legally valid will is deemed to have died "intestate".  In such a case, state law determines what happens to your property.  Your property may go to your spouse, children, or close relatives but the power of your estate remains in the hands of the court.  The court will also determine who cares for your children if the other parent is unavailable or unfit.  If no relatives can be found, the state could take ownership of the property you leave behind.

What are the requirements for making a will? 

In most states:

  1. You must be eighteen years old. Exceptions can be made for younger people who are married, in the military, or legally emancipated.

  2. A provision must be included in the will that gives away property or names a guardian for a minor child.  

  3. The will must be signed and dated by the person making it and be witnessed by two witnesses who are not beneficiaries. 

  4. The creator of the will must be of “sound mind.” The term “sound mind” has a tri-fold meaning. 

    1. The creator must know what a will is, what it does, and why it is being made. 

    2. The creator must understand the relationship between himself and those in his will. 

    3. Finally, the creator must understand the kind and quantity of the property he owns and how to distribute it.

Are there different types of wills? 

Yes. Wills can be handwritten, oral, typed and audio visual.

  1. Handwritten wills (referred to as holographic wills) are only valid in some states, very difficult to prove if not witnessed, and are held to very strict standards by judges. 
  2. Oral wills are only accepted in extreme circumstances such as a dying soldier’s last wishes. 
  3. Typed wills are the most reliable and accepted. They are much less vulnerable to forgery and easier to prove valid.
  4. The audio visual will is a new type of will to emerge and most states do not have statutes that allow for its use.  

What makes a will valid?

  1. The author must be of legal age (18 in most states) and of sound mind to create a will.
  2. The will must say that it is your will.
  3. The will must be dated and signed.
  4. Two witnesses (whom do not inherit property in your will)  must sign your will.  (In Vermont, three witnesses are required.)
  5. It is a good idea to to have your will notarized but it is not required.

What can be left in a will?

Most property can be transferred via will.  This includes real estate such as houses, lands, and apartments and real property like cash, automobiles, and appliances.  Intellectual property such as trademarks and patents can also be passed through a will.  In addition, guardianship of a minor may pass through a will. See an expanded list of property transferable by will.  

Do I have to file a will?

No, a will does not have to be filed within the court system or other government agency.  Some states allow you to do so, although it is not a requirement.  Simply keep your will in a safe and secure location.  Make sure the executor of your will knows where it can be found.

Can my will be challenged?

A challenge to a will is uncommon.  Usually, a challenge occurs when a family member believes he/she has been unjustly left out of the will.  A will must be challenged in court.  A major inconsistency (forged signature, improper influence, not of sound mind) must be proven for a challenge to be upheld.  Again, providing a letter that explains the will is usually a helpful tool when deciphering a will, especially if potential beneficiaries were left out of the will. 

What information do I need to complete my will?

  1. Name of the beneficiaries who will inherit property.
  2. Name of guardians of minor children.
  3. Executor and Personal Representative of your estate.
  4. Name of trustee of any trust established for your children.
  5. The way you want your estate distributed.

Who should be the Executor / Personal Representative of my will?

It is strongly advisable to name someone trustworthy as Executor / Personal Representative of the estate, empowering them with authority to enforce the terms of the will. Usually the Executor / Personal Representative is someone well known to the testator, such as a family member.

 

Last Will and Testament Home  |  About Wills  |  Form Details

Types of Property Legally Transferred by Will  | Forms of Real Property Ownership

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