Legal Questions About Wills

By Anna Assad

A will provides for distribution of your property after your death and contains your final wishes. You must be at least 18 years of age and mentally competent to make a will and the document must be executed in accordance with your state's laws. The exact laws on wills differ by state, but some issues are commonly addressed in probate legislation throughout the United States.

A will provides for distribution of your property after your death and contains your final wishes. You must be at least 18 years of age and mentally competent to make a will and the document must be executed in accordance with your state's laws. The exact laws on wills differ by state, but some issues are commonly addressed in probate legislation throughout the United States.

When You Don't Have a Will

If you do not have a will, your assets are distributed in accordance with your state's laws. The exact rules of inheritance without a valid will vary by state, but your spouse or children are typically given automatic shares of your estate. If you are not married and have no children, your surviving parents or siblings may inherit your estate. In cases where no surviving family members can be found, your estate may be handled by a court-appointed administrator and absorbed by the local government.

Protect your loved ones by a legally binding will. Make a Will Online Now

When You Omit an Heir

You may leave an heir out of your will on purpose, but your state laws may provide a share for the person anyway. Some states require the naming of an omitted heir in a will with a declaration of the omission. Your spouse may be able to take a part of your estate even if you state you are intentionally omitting her.

Probate Required

Probate is the legal proceeding used to validate your will, settle your affairs and give authority to your named executor -- the person who will manage your estate. Your will may not be probated if your estate consists of only exempt property. If the court determines the will is invalid, the probate proceedings are not completed and your executor is not appointed. If your total estate value is under the threshold for probate in your state, actual probate may not be necessary or simplified probate procedures may suffice.

Changing Your Will

You may change your will or write an entirely new will, but you must follow your state laws regarding amendments or revocations. You generally cannot write over your original will to make an amendment, but you may be able to file a codicil, a separate document that describes what you are changing. To revoke a will entirely, you may make a new will and state you are revoking all prior wills.

Will Provisions

A will does not provide for assets and property that are outside of your state's probate proceedings. The laws differ by state, but some common non-probate items include a life insurance policy, a retirement plan, and any property you owned with another person as a joint tenant. Life insurance and retirement plan proceeds go to the person you designated on the plan paperwork, and the surviving joint tenant becomes the sole owner of the property. If you include a provision for an asset that is exempt from probate, the provision will be disregarded in probate.

Protect your loved ones by a legally binding will. Make a Will Online Now
How to Change Your Heirs in Your Will

References

Related articles

Illinois Laws on Wills

A valid will can nominate someone to manage your estate and detail how your property should be distributed when you die. In Illinois, wills must comply with the Illinois Compiled Statutes, which address requirements such as the age and mental condition of the person making the will. If your will doesn't meet these requirements, it may be declared invalid, and your estate will be distributed according to state law.

How to Make Your Own Will Forms

A will is a document that tells a probate court how to distribute the assets of the person who wrote the will -- known as the testator -- after he dies. A will must be prepared in accordance with state law or it will not be enforced. The laws of the various states differ somewhat on what is required to create a valid will. If your will is declared invalid, your property will be distributed among your relatives in accordance with the state intestacy law.

Difference in Probate Laws Between South Carolina & New Jersey

Having a connection to both South Carolina and New Jersey can add a layer of complexity to your estate planning process. After your death, property you owned will need to be transferred to your heirs through the court process known as probate. Understanding how the laws differ in these two states, as well as how some of the discrepancies can be minimized by having a valid will in place, will help your loved ones avoid complications when it comes time to probate your estate.

LegalZoom. Legal help is here. Start Here. Wills. Trusts. Attorney help.

Related articles

Can I Make My Siblings Include Me on a Mother's Estate?

Your siblings usually can't prevent you from sharing in your mother's estate. State laws give you a share of your ...

How to Write a Codicil to a Will

A codicil allows you to amend a portion of your already written will without filing an entirely new will. Your codicil ...

Legal & Binding Wills

Although you may not like contemplating death, preparing a will allows you to provide instructions regarding your ...

Does My Spouse Inherit Everything When I Die?

Whether your spouse inherits your entire estate depends on your state's laws. If you die without a will, your estate is ...

Browse by category