Frequently Asked Questions - Wills & Trusts

Q. What happens if I die without a will?
A. If you don't make a will or use some other legal method to transfer your property when you die, state law will determine what happens to your property. Generally, it will go to your spouse and children or, if you have neither, to your other closest relatives. (If you are part of an unmarried same-sex couple, the survivor will not inherit anything unless you live in one of the few states that allows registered domestic partners to inherit like spouses: California, Maine, and Vermont.) If no relatives can be found to inherit your property, it will go into your state's coffers.
In addition, in the absence of a will, a court will determine who will care for your young children and their property if the other parent is unavailable or unfit.

Q. don't have much property. Can't I just make a handwritten will?
A. Handwritten, unwitnessed wills, called "holographic" wills, are legal in about 25 states. To be valid, a holographic will must be written and signed in the handwriting of the person making the will; in some states it must also be dated. Some states allow you to use a fill-in-the-blanks form if the rest of the will is handwritten and the will is properly dated and signed. A holographic will is better than nothing if it's valid in your state. But a will signed in front of witnesses is better. If a holographic will goes before a probate court, the court may be unusually strict when examining it to be sure it's legitimate. And if you don't have guidance -- from an experienced Wills & Estates lawyer -- it's easy to write something that turns out to be ambiguous or even contrary to what you intended.

Q. Can I use my will to name somebody to care for my young children in case someday I can't?
A. Yes. If both parents of a child die while the child is still a minor, another adult -- called a "personal guardian" -- must step in. The personal guardian will be responsible for raising your children until they become legal adults.
You and the child's other parent can use your wills to nominate someone to fill this position. To avert conflicts, you should each name the same person. If a guardian is needed, a judge will appoint your nominee as long as he or she agrees that it is in the best interest of your children.

Q. What makes a will legal?
A. Any adult of sound mind is entitled to make a will. Beyond that, there are just a few technical requirements a will must fulfill:

• The document must expressly state that it's your will.
• You must date and sign the will.
• The will must be signed by at least two, witnesses. The witnesses must watch you sign the will, though they don't need to read it. Your witnesses, in most states, must be people who won't inherit anything under the will.

Q. Can I leave property to young children in my will?
A. Children under 18 can inherit property -- but if it's anything valuable, an adult must manage it for them. You can use your will to name someone to manage property you leave to minors, avoiding the need for a court to appoint and supervise a guardian. Here are four simple ways to structure a property management arrangement:

1. Name a custodian under the Uniform Transfers to Minors Act. In every state except South Carolina and Vermont, you can choose someone, called a custodian, to manage property you are leaving to a child. The custodian will step in to manage the property until the child reaches the age specified by your state's law -- 18 in a few states, 21 in most, 25 in several others.
2. Set up a trust for each child. You can use your will to create a trust for any property the child inherits, and name someone (called a trustee), to handle the trust property until the child reaches the age you specify.
3. Set up a "pot trust." If you have more than one child, you may want to set up just one trust for all of them. This arrangement is usually called a pot trust. The trustee decides what each child needs, and spends money accordingly.
4. Name a property guardian. If you simply name a property guardian for your child, this person will manage whatever property the child inherits, if there's no other mechanism (a trust, for example) to handle it.

Q. Must my will leave something to my spouse and children?
A. Disinheriting spouses. The law protects surviving spouses from being left with nothing. If you live in a community property state (Alaska (only if you have made a written community property agreement), Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, or Wisconsin), your spouse automatically owns half of all the property and earnings (with a few exceptions) acquired by either of you during your marriage. You can leave your half of the community property, and your separate property, to anyone you choose.
In all other states, a surviving spouse has a legal right to claim a portion of your estate, no matter what your will provides. But these provisions kick in only if your spouse goes to court and claims that share.
If you don't plan to leave at least half of your property to your spouse, either through your will or outside it, you should consult a lawyer -- unless your spouse willingly consents in writing to your plan.
Disinheriting children. Generally, it's perfectly legal to disinherit a child. If, however, it appears that you didn't mean to disinherit a child -- the most common example is a child born after you made your will -- then the child has the right to claim part of your property. Some states go further. For example, the Florida Constitution prohibits the head of a family from leaving his residence to anyone other than a spouse if he is survived by a spouse or minor child.

Q. Can someone challenge my will after I die?
A. When a will is challenged, it's usually by a close relative who feels somehow cheated out of a share of the deceased person's property. To get an entire will invalidated, someone must go to court and prove that it suffers from a fatal flaw: the signature was forged, you weren't of sound mind when you made the will, or you were unduly influenced by someone accordance with your wishes, it is recommended you have a lawyer prepare the will.
A lawyer can assist in the following ways:

• Help you prepare an itemized list of your real and personal property and other assets.
• Advise you about legal requirements of which you maybe unaware.
• Explain the advantages/disadvantages of certain provisions you may want to include.
• Help you plan your estate for the greatest benefit of your heirs (e.g., use of deductions to reduce the size of the estate, thus avoiding unnecessary taxes.)