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.

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.

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.

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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.

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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 divided according to state intestacy laws. If you had a will, your spouse's share is partly dependent on what you left her and whether you have surviving children or parents. Any part of your estate not subject to your state's estate laws, such as your retirement account, automatically belongs to the person you put as beneficiary on the account paperwork. Property you owned jointly with your spouse, such as your home, usually belongs to her as soon as you die.

How to File a Last Will & Testament in Ohio

You may file a last will and testament in Ohio for safekeeping or to initiate probate -- the legal proceeding used to settle the final affairs of a deceased person. Filing your will with the court prior to your death will keep the document safe and avoid questions about the validity of your signature after your death. Ohio law requires the filing of the original will with the probate court.

Virginia Laws on Willed Property in Divorce

Getting a divorce in Virginia brings up a lot of issues surrounding wills and estates, particularly if one spouse passes away while the divorce is pending. Generally, assets a spouse inherited under a will are not impacted by a divorce. However, Virginia law provides that spouses must receive a certain portion of the deceased spouse's estate, even if the marriage is headed for divorce.

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