Will

A will does four main jobs. It names an executor, called a personal representative in many states, who collects your assets, pays debts and taxes and hands out what is left. It nominates a guardian to raise minor children, often the most important reason for a young family to have one. It leaves specific items or sums to specific people or charities. And a residuary clause sends everything not otherwise mentioned to whomever you choose, catching assets you forgot or acquired later.

A will can also set up a testamentary Trust, for example to hold a child’s inheritance until a set age, and a pour-over will sends any stray assets into an existing revocable living trust.

A will has no effect until death. Until then you can change it with an amendment called a codicil, replace it or revoke it, as long as you still have the mental capacity to do so. It is only one piece of estate planning: it does nothing if you become incapacitated, which is the job of a power of attorney.

A will governs only the probate estate: property in your sole name with no other mechanism to transfer it. Much of a modern estate passes outside the will and outside Probate through the channels below, and each of them wins if it disagrees with the will.

A will cannot fix an out-of-date beneficiary form, even after a divorce. In Egelhoff v. Egelhoff (2001), the Supreme Court held that federal law governing employer benefit plans overrode a Washington statute that revokes an ex-spouse’s designation at divorce, so the former wife still named on the forms kept the pension and life insurance benefits. Spouses also have ownership and inheritance rights a will cannot take away, which vary by state.

Each state sets its own rules for signing a will, called execution formalities, and a will that misses them can be thrown out. Many states also accept a holographic will, whose signature and material provisions are in your own handwriting, even without witnesses; others do not, so a handwritten note valid in one state can fail in the next. A growing number of states allow electronic wills. A will validly signed in one state is generally honored after a move, but check it against the new state’s rules on spouses’ rights and property.

You do not need a lawyer for a will to be valid; a do-it-yourself will that meets the rules is enforceable. An attorney earns the fee on what tends to go wrong: a missed formality, an unclear gift or a family likely to contest.

In states that follow the Uniform Probate Code, and in most others, a standard witnessed will needs the following. A notary usually is not one of the requirements.

Dying without a valid will is called dying intestate. Your probate property then passes under your state’s intestate succession law, a default will written by the legislature. A surviving spouse and children come first, followed by other close relatives such as parents and siblings. If no relatives qualify, the property can escheat, or pass, to the state.

The defaults rarely match what people would have chosen. Unmarried partners, close friends and charities receive nothing, and stepchildren usually receive nothing unless adopted. In many states a surviving spouse shares the estate with children rather than inheriting everything. A court appoints an administrator to settle the estate, and if both parents of a minor child have died, a court chooses the guardian without your input.

Intestacy does not affect accounts with a living named beneficiary, which still pass by their forms. It also does not avoid probate: the estate goes through the same court process, often with extra steps, such as a bond for the administrator.

Most problems with wills come from what happens after signing rather than from the wording. A will drafted when the children were infants may name a guardian who is now too old, an executor who has since died or assets long since sold, while newer accounts carry beneficiary forms that were never compared with it. Rereading the will after each major life event, and checking it against every account, catches most of these.