Wills & Estates
WHAT HAPPENS IF I DIE WITHOUT A WILL?
In addition, in the absence of a will, a court will determine who will care for your young children and their property if the other parent is unavailable or unfit.
WHAT MAKES A WILL LEGAL? DO I NEED A LAWYER TO MAKE MY WILL?
Any adult of sound mind is entitled to make a will. Beyond that, there are just a few technical requirements a will must fulfill:
- The will must be signed by at least two, or in Vermont, three, witnesses. The witnesses must watch you sign the will, though they don’t need to read it. Your witnesses, in most states, must be people who won’t inherit anything under the will and are not related to you by blood or marriage. (If your state allows “holographic” wills, you don’t need witnesses.)
- You must date and sign the will.
You don’t have to have your will notarized. In many states, though, if you and your witnesses sign an affidavit (sworn statement) before a notary public, you can help simplify the court procedures required to prove the validity of the will after you die.
You do not have to record or file your will with any government agency, although it can be recorded or filed in a few states. Just keep your will in a safe, accessible place and be sure the person in charge of winding up your affairs (your executor) knows where it is.You are not required to have a lawyer draft a will for you, and most people do not need a lawyer’s help to make a basic will — one that leaves a home, investments, and personal items to your loved ones, and, if you have young children, that names a guardian to take care of them. Creating a basic will rarely involves complicated legal rules, and most people can create their own will with the aid of a good software program or book. But if you have questions that aren’t answered by the resource you’re relying on, or your situation is unusual, it may be worth it to see a good lawyer.
I DON’T HAVE MUCH PROPERTY. CAN’T I JUST MAKE A HANDWRITTEN WILL?
CAN I USE MY WILL TO NAME A GUARDIAN TO CARE FOR MY YOUNG CHILDREN AND MANAGE THEIR PROPERTY?
Yes. If both parents of a child die or become otherwise unable to care for a minor child, another adult — called a “personal guardian” — must step in. The personal guardian will be responsible for raising your children until they become legal adults. You and the child’s other parent can use your wills to nominate someone to fill this position. To avert conflicts, you should both name the same person.You can choose that same guardian to manage property that you leave to your minor children or you can name someone different. You can name a “property guardian”, a “custodian”, or a “trustee” to manage the property:
- Name a property guardian. You can simply name a property guardian to manage whatever property the child inherits, if there’s no other mechanism (a trust, for example) to handle it. The guardian will manage the property until the child reaches the age of 18.
- Name a custodian under the Uniform Transfers to Minors Act (UTMA). In every state except South Carolina and Vermont, you can choose a custodian to manage property you are leaving to a child. The custodian will step in to manage the property until the child reaches the age specified by your state’s law — 18 in a few states, 21 in most, 25 in several others.
- Set up a trust for each child. You can use your will to create a trust for any property the child inherits and to name a trustee to handle the trust property until the child reaches the age you specify.
- Set up a “pot trust.” If you have more than one child, you may want to set up just one trust for all of them. This arrangement is usually called a pot trust. You name a trustee to decide what each child needs and to spend money accordingly.
MUST I LEAVE SOMETHING TO MY SPOUSE AND CHILDREN?
Disinheriting children. Generally, it’s perfectly legal to disinherit a child. If, however, it appears that you didn’t mean to disinherit a child — the most common example is a child born after you made your will — then the child has the right to claim part of your property.