FAQ on Legal Will

by Kristin Shea
Make sure your will adheres to your state's laws.

Make sure your will adheres to your state's laws.

Jupiterimages/Comstock/Getty Images

Your will provides you with the opportunity to bequeath your property, establish care for your children and family, and otherwise express your wishes. Many questions will likely arise as you prepare this important document. Every state has different laws governing wills, so review your state statutes or discuss your will preparation with an attorney if you are uncertain about the legality of your will.

Do I Need a Will?

There is no legal requirement that you prepare a will, but it is a good idea. Leaving a will is the best way to ensure that your wishes and intentions are honored.

What Happens to My Children and Property if I Don’t Have a Will?

If you die without a will, the court determines the distribution of your property. Each state has its own succession laws, but generally the court gives your property to your spouse and children. If you have no spouse or children, the court gives your property to your closest relative. If no relatives, your property goes to the state. The court will also decide who will care for your minor children.

Must I Hire an Attorney to Prepare My Will?

You can legally prepare your own will. Keep in mind, however, that if your will does not meet your state’s legal requirements, a court can deem your will invalid, in which case your intentions might not be honored. If you prepare your own will, review your state’s statutes and requirements.

Can My Will be Changed?

You can create an addendum to your will called a codicil. A codicil can add, remove or otherwise change the terms of your will. You can also revoke a prior will by expressly stating the revocation in a new will.

What Are the Requirements for a Legal Will?

Every state has its own requirements. Review the statutes in your state to ascertain that your will is valid. Typically, the will must be signed and dated by a testator -- or will maker -- who has reached the age of majority -- usually 18 -- and is competent, or "of sound mind," which means the testator generally understands the provisions in his will. Most states require signatures by two uninterested witnesses. Generally, a codicil must meet the same requirements as a will and refer to the original will.

Can I Disinherit My Spouse and Children?

Although state laws vary regarding the details, you cannot disinherit your spouse in any state. However, most states -- with the exception Louisiana -- allow you to disinherit your children.

Who Should I Choose as an Executor?

Although each state imposes its own requirements, generally your executor cannot be a minor or a felon, and must be a United States citizen. In many cases, your executor will not need specialized financial or legal knowledge. Choose an executor who is mature, honest and organized. Also consider whether your choice can successfully maneuver through the red-tape and bureaucratic tasks of performing the job. Whoever you choose, discuss the person's duties and confirm his willingness to accept the position.

Can I Choose an Out-of-State Executor?

Some states place additional requirements on out-of-state executors, such as requiring them to post a bond and have a substantial beneficiary interest in the estate. Consider whether an executor’s distance from the probate court and estate assets will place a burden on the person.

Can I Appoint a Guardian for My Children in My Will?

Naming a guardian is perhaps one of the most important terms of your will. Choose a guardian who will raise your minor children according to your parental philosophy. Discuss your decision with the guardian to be sure the guardian is willing and prepared to accept the responsibility.

Can I Appoint a Guardian for My Pet in My Will?

Unfortunately, not everybody loves your pet as much as you do. Make arrangements for your pet’s care and express your intentions in your will. Choose a guardian who can provide your pet with a loving home.