Last Wills and Testaments: More Frequently Asked Questions

Takeaways

• A will is a legal document that outlines the distribution of one’s assets after they pass away and can appoint guardians for one’s minor children.
• Dying without a will (intestate) means state law dictates asset distribution, and the estate will likely go through probate, which can be time-consuming and costly.
• While alternatives like trusts exist, a will remains a foundational estate planning tool.

August is National Make a Will month — a fantastic opportunity to learn more about this essential type of estate planning tool. Wills form the foundation of a solid estate plan. Creating one can be a first step toward protecting your legacy and providing for your loved ones should you pass away.

To celebrate Make a Will month, here are some frequently asked questions about the basics of wills.

What Is a Last Will and Testament?

A last will and testament (more commonly called a will) is a legal document that states who receives your assets, such as your money, home, and other valuable or sentimental possessions, if you pass away. In addition to distributing assets, you can use a will to nominate a guardian for minor children and to create a trust.

When you make a will, you may come across terms such as estate, testator, beneficiary, and executor.

What Is an Estate in a Will?

An estate is everything a person owns: real estate, vehicles, bank accounts, and personal possessions. A person can use a will, as well as more complex estate planning tools, such as a trust, to transfer their estate.

What Is a Testator?

Testator is the term for the person who makes a will. This is the person whose assets will be transferred upon death. When you make your will, you are the testator.

What Is a Beneficiary?

A beneficiary is someone named in a will to receive the deceased person’s assets or property. A will may name multiple beneficiaries, or just one. Beneficiaries are often family and close friends of the testator.

Successor beneficiaries receive assets if the first intended beneficiary has died or does not want the inheritance.

An organization, such as a charity or a school, can also be a beneficiary of a will.

What Does the Executor or Personal Representative Do?

This individual, named in the will, ensures that the beneficiaries receive what the testator intended them to have. They may be known as the executor, personal representative, or estate administrator and are responsible for filing the estate’s taxes and notifying the beneficiaries of their inheritance.

Typically, an executor is a person the testator trusts to act in accordance with their wishes, often a spouse, adult child, or close friend. An executor can also be a beneficiary named in the will. For example, a man might leave everything to his wife and also name her as the executor.

What Happens if Someone Dies Without a Will?

Passing away without a will is known as dying intestate, and it is common. According to Caring.com’s annual Wills and Estate Planning Study, less than a quarter of Americans have created a will. Nearly 40 percent of people cited a lack of assets as a reason for not making a will.

The governing state’s intestacy law controls who receives the deceased person’s assets when they die without a will. These laws typically prioritize close family members. If the estate is large enough, it will still go through the court-overseen probate process.

Dying without a will can lead to several complications. For instance, disagreements may arise among family members regarding who should be the executor of the estate or how assets should be divided. If the deceased person had minor children, the court will appoint a guardian, which might not be the individual the deceased person would have chosen.

What Is Probate?

After someone dies, their estate goes through probate if it is large enough to meet the state’s threshold. Probate is the process by which the court oversees the distribution of the deceased person’s assets. It ensures that the deceased person’s wishes are honored (if they had a will) and that their assets are distributed legally and fairly. It also provides a structured way to settle any outstanding financial obligations.

However, the probate process can sometimes be time-consuming and costly. There are ways of avoiding probate, such as creating a trust or using pay on death (POD) accounts, but note that not all assets need to go through probate. Assets held in a living trust, jointly owned property with rights of survivorship, and accounts with designated beneficiaries (like life insurance policies or retirement accounts) often bypass probate.

What Is the Difference Between a Beneficiary and an Heir-at-Law?

An heir-at-law is a person who has a legal right to inherit under the state intestacy statute. When someone dies without a will, state law governs who receives the estate. Typically, these are relatives such as the deceased person’s spouse and children.

As mentioned above, beneficiaries are people named in the will to receive the testator’s assets. They do not need to be related to the testator. A will can supersede the state’s intestacy law, disinheriting certain individuals — except the spouse without a valid prenup or those with certain requirements, such as from a divorce order.

Do I Need a Will?

Most everyone could help protect their legacy and make things easier for their loved ones by having a will in place, regardless of how much money and property they have. While putting off making a will is common, it is not ideal because dying without a will or estate plan can leave loved ones in uncertainty.

For someone with few assets, a will is still valuable. It can make the death less stressful for loved ones, providing clear instructions about who gets the deceased person’s possessions. It also offers a way to make loved ones feel thought of and remembered.

In addition, a will can include a guardianship nomination for minor children, instructions for accessing one’s digital accounts, and details regarding who you want to take care of pets.

How Do I Make a Will?

It is strongly recommended that people work with an attorney to create a will. To be valid in most states, a will must be in writing, signed by the testator, and witnessed by two people — ideally individuals not benefiting from the will, like neighbors or paralegals at a law office.

Some states recognize holographic wills, which are handwritten documents that may not be signed by witnesses. However, the process of validating a holographic will can be far more complex than a standard will.

Can I Change my Will?

As long as you are of sound mind, you can change your will at any time. The new document will often revoke any previous last will and testaments. When you change your will, you should destroy old copies and let your loved ones know where the new will is stored. Alternatively, you can make minor changes to your will through an amendment called a codicil.

Note that in some states, making any handwritten changes to a will could make it invalid. Consulting with an attorney to ensure any changes are legally valid and properly reflect your wishes is important.

How Do I Get a Copy of Someone’s Will?

Before someone passes away, you can only get a copy of their will if they give one to you. If you are a named beneficiary or executor, the testator may choose to give you a copy.

After the person passes away, you may find their will in their home, such as in a safe. Some attorneys keep wills on file for their clients.

Wills become available after the estate administrator initiates probate and notifies the beneficiaries.

Are Wills Public Record?

Yes, wills become public record once the person who created it has passed away and, in most cases, once the will has either entered or gone through probate. They can be viewed at the probate court, and some jurisdictions allow online access. Wills become public record to allow access to creditors and interested parties. While someone is alive, their will is a private document.

Some alternatives to a will, such as trusts, are not public record.

What Are Alternatives to a Will?

Alternatives to a will include trusts, pay-on-death and transfer-on-death (TOD) accounts, and joint tenancies. These instruments transfer assets without going through probate, making wealth transfers more efficient for families. They are not always mutually exclusive, however. For example, you can establish a will as well as a trust.

Still, even people with these other estate planning tools in place often also have a will. This is because the will may take effect as a backup if something goes wrong with the nonprobate transfer and can cover any outstanding assets.

Can a Last Will and Testament Be Challenged?

Yes, a last will and testament can be contested. Known as a will contest, this process typically unfolds during probate.

A will contest occurs when an interested party, such as a beneficiary, heir, or creditor, believes that the will does not accurately reflect the deceased person’s true intentions or that it was created under improper circumstances. The burden of proof in a will contest generally rests on the challenger, who must provide compelling evidence to support their claims. Will contests can be complex, time-consuming, and emotionally charged legal battles.

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