What is a Will?

A will is a set of instructions, to both your loved ones and to the court, of how you’d like your final wishes to be executed.  Most wills are instructive as to how the deceased individual would like their property distributed after his or her death, however wills are also serve many other functions.  In addition to providing for asset distributions, wills often:

    • Name an executor or personal representative
    • Name guardians for children
    • Indicate how debts and taxes are to be paid
    • Provide for pets

Different Kinds of Wills

  • Testamentary Will — A testamentary will, also known as a “self-proving will,” is the traditional legal document that comes to mind when most people think of a will.  A testamentary will is a formally prepared document that is signed in the presence of witnesses.
  • Holographic Will — A holographic will is an informal, handwritten will that is signed by the testator.  Holographic wills are often challenged and may not hold up in a court or law.
  • Oral Will — A will that is delivered orally to witnesses rather than being written/signed in a proper format.  Most state courts do not accept oral wills, and those that do typically do so only in rare circumstances.
  • Living Will — Unlike the other will forms, a living will has nothing to do with distributions of assets.  Rather, a living will states your medical care and end-of-life preferences, should you become incapacitated.  

What Happens If I Die Without a Will?

Those who pass away without a will die “intestate” — without a testament.  When individuals die intestate, the laws of their state govern the distribution of their assets.  Intestacy laws vary from state to state, and often fail to provide for those who would otherwise have been provided for, had the deceased made a will.  

The laws of intestacy provides for the distribution of a deceased’s assets in accordance with a set formula that typically resembles a reverse family tree.  Most often, intestacy laws distribute half of your estate to your spouse and the other half to your children.  Such a scenario can force the sale of a family home or other familial assets, negatively impacting particular family members.

Furthermore, intestacy laws do not take into account personal preferences and particular situations.  If you are going through a divorce that is yet to be finalized, the laws of intestacy may give half of your estate to your soon-to-be ex-spouse. The laws of intestacy also fail to provide for loved ones and institutions that fall outside of the distribution formula.  

Why Do I Need a Will?

Creating a will is the only way to ensure that your assets are distributed how you want them to be after your death.  Wills give you the power to decide how you would like your most precious family heirlooms to be distributed.  If you own a business or hold other investments, your will can facilitate the smooth transition of those assets.  Wills may also provide for friends, charitable  and religious organizations, and academic institutions that would not otherwise inherit from the laws of intestacy.  Perhaps most importantly, however, wills ensure that your minor children are taken care of after your passing.
Wills often minimize tension amongst your surviving heirs, and alleviates the possibility of your relatives battling over your possessions.

Most people put off off making a will due to inconvenience, insufficient knowledge or simply fear of their own mortality.  Creating your last will and testament is an important step in planning for your estate, and failing to do so may result in undesired consequences after your death.