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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