Eighty percent of Americans die without a will. You’re already thinking about whether you should be one of them, which is how you found this article.
Attorneys Say…
Attorneys will tell you that yes, you need a will; that drafting a will is complicated and may take lots of time; and that preparing your will documents is going to cost serious money. We know that’s a turnoff for most people, who are already reluctant to make an estate plan.
FastWill Says…
FastWill was developed to cut through all of this clutter to give you the quick, accurate answers to your most important questions so that you can take the task “make a will” OFF your to-do list.
So let’s get started.
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What’s a Will?
A will is a legal document that dictates what happens to a person’s property and children, if any after the person dies. The document expresses the person’s wishes and names a person to act as an executor (or “trustee” in some states) who will fulfill that person's wishes. A will provides for legal guardianship if there are minor children and may also state the person’s preferences for their funeral and burial.
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If I Draft My Own Will Without a Lawyer, Will It Be Legal?
In most states, you can totally draft your own will without hiring an attorney. Some states allow you to handwrite or type up your own will. This is called a “holographic will.” In some states this is illegal. Even in the states where this is acceptable, we don’t recommend it. To make sure your will is legal where you live, you should use a form that covers all the formalities that the state requires, such as signatures and witnesses. FastWill was created to help you do exactly that.
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What Happens If I Don’t Have a Will?
Nothing good. The biggest problem of dying without a will is that your loved ones will have to figure out what to do about everything from planning your funeral to paying your debts. And they get the added headache of having to go through the probate process, which means a court gets involved in making those decisions.
Speaking of probate, dying without a will is called “dying intestate.” Even if you don’t have many assets, your loved ones will still be bogged down in court. They won’t even be able to transfer title to your car without the probate court’s involvement. The states have specific rules for determining who gets your stuff if you die intestate. Although you might think it would be pretty obvious - your spouse, kids, or parents would divvy it up - it’s more complex than that.
Don’t believe me? Here’s a quick example. If you are married, live in a common law property state, and have two cars (one from before your marriage and one co-owned), one house, a retirement account, an inheritance you obtained before marriage, and two kids, then distribution rules dictate the following: your husband or wife gets 100% of the community property, but only one-third or one-half of the separate property left (the car and inheritance). Your kids and parents and even their heirs could share in the distribution.
If that sounds too complicated, then you just need a will. Most people simply want their surviving spouse to get title to everything they own and then plan the funeral. You may not get that from probate.
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Do I Need a New Will If I Move?
Probably, to be on the safe side. A will that is valid and legal in one state should be recognized by any other state. This is due to the “full faith and credit clause” of the Constitution. (You can find that in Article 4, Section 2, clause 1, for all the nerds out there).
But the devil is in the details! A will is almost always part of a bigger estate plan that includes advanced healthcare directives and powers of attorney, and those aren’t always honored from state to state. Why? Because financial institutions, doctors, and health care institutions are cautious by nature. They often balk at forms that aren’t familiar to them. Some states require at least two witnesses to execute a durable power of attorney, for instance, so if you show up with a POA that has no witnesses, the bank or hospital can reject the document.
If you’re moving between a community property state and a common law state, you should update your will. And since some states have estate taxes and others don’t, it’s a good idea to update your estate plan to reflect the laws in your new state of residence.
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What Are the Minimum Requirements for a Valid Will?
In all states, the requirements for making a will are pretty basic:
First, you have to be at least 18 years old, unless you were emancipated as a minor (like Macauley Culkin).
Second, you have to be of “sound mind” for a will to be valid. This isn’t a high bar. Basically, you’ve got to be able to understand what a will is, understand what your assets are, and understand the relationship between yourself and your potential heirs (like your spouse and children).
Third, the will must be in writing, signed and dated by you, and witnessed in accordance with state law. And that’s basically it.
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Do I Have to File the Will With a Court?
Nope. You don’t have to file or record your will with a court or government agency, unlike a property deed. Once you make a valid will, you can keep it anywhere you want. FastWill recommends keeping it in a safe, waterproof, and fireproof place. You should also give a copy to the person who is going to be your executor, or else tell them where it is.
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But What If I Change My Mind After I Make a Will?
If you change your mind about something in your will, the answer is simple: just change the will. Most of the time this doesn’t even mean the whole thing gets rewritten. You can change the will with the use of a codicil. A codicil is just a written document that describes the change you want to make to your will. Just make sure you keep the codicil with the original will.
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Who Should I Name as Executor?
FastWill can’t tell you who to name as executor because that’s completely your choice. When you’re thinking this through, keep in mind what an executor does. An executor is the person who will act like your agent after you die, distributing the assets and seeing that your wishes are fulfilled. It makes sense to pick someone who lives in-state and make sure it’s someone you trust. Many people pick their spouses and one backup person. Professionals like lawyers or accountants also make good executors, but an executor doesn’t need to have any specific education or experience.
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What Makes a Will Illegal?
In the world of estate planning, a challenge to the will’s validity is called a “will contest.” This doesn’t involve two people entering the Octagon, but it can get pretty spicy. Usually, a will contest is filed by an heir or beneficiary who didn’t get what they were expecting from the will. Their most common legal objections are:
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The will is a forgery. This is easy to disprove if you avoid those dreaded handwritten wills.
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The will didn’t follow all the legal formalities, like the right number of witnesses or signatures. This is also something you can avoid if you use a service that uses AI and machine learning (hint, hint) to make sure your will is valid when it is created.
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The person wasn’t of sound mind when the will was executed. This is fairly hard to prove in most situations.
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There was some kind of fraud, undue influence, or even force involved in creating the will. Again, there’s a high bar to proving fraud or influence, and it tends to happen most often when the person who made the will is elderly and the family is suspicious of the people around that person.
The Moral of the Story
If you die without a will, then your property will be distributed according to the law of the state you live in and your loved ones will experience a lot of stress and drama at a time when they are already grieving. You can get a full estate plan that is legally valid and verified by AI by working with FastWill.
