FAQ about Wills
What is a will?
What are the requirements for a will?
Who needs a will?
Can a will appoint a guardian for my children?
What is an executor?
Who can be the executor?
Does the executor have to live in the decedent’s state?
Does the executor have to live in the decedent’s state?
Does the executor get paid?
Is probate needed if there is a will?
What if a will is deemed invalid?
How can I find out if there is a will?
What happens if someone dies without a valid will?
What is a will contest?
What happens when the will is contested?
What is a will?
A will is a document that explains how a person wants his or her property to be distributed after they die. It is also known as a last will and testament. The document can name a personal representative or executor, who is in charge of carrying out the final financial obligations of the deceased person during probate. If you have minor children, you can appoint a guardian in the will.
What are the requirements for a will?
There are specific requirements that a will must meet for it to be valid. The requirements can be found in state legislation, which typically gives explicit instructions on how the will must be written, where it needs to be signed and how many witnesses must to be present for the signing, among other things. These requirements can vary significantly from state to state. If all the conditions aren’t satisfied, or if there is evidence of fraud, the will is considered meaningless in the eyes of the probate court.
Who needs a will?
Virtually every adult, regardless of age or marital status, can benefit from having a will. Wills allow you, rather than the state, to decide who gets your money and property upon your death. Having a will is especially important if you have young children, because it allows you to transfer guardianship.
Can a will appoint a guardian for my children?
Yes. In addition to naming who you want to inherit your property, a will can also name a guardian for your children in the event of your death. A guardian is the person legally appointed to care for a minor child. Until the child reaches legal age, the guardian is responsible for the child’s housing, health, education, finances and other needs.
What is an executor?
The executor of a will, sometimes called a personal representative, is the person or institution that takes control of your assets once you die. It is the executor’s responsibility to perform the duties of probate on your behalf. These duties typically include:
Collecting the assets of your estate
Protecting estate property and preparing an inventory
Paying of claims against the estate, including debts and taxes
Distributing remaining property to beneficiaries
It’s important you appoint a competent and reliable executor to represent your estate, especially since you will trust them with controlling your assets. If the executor fails at performing probate duties, he or she will likely have to pay out of pocket for any damages that result.
Who can be the executor?
An executor can be a person or an institution, such as a bank or trust company. There are certain restrictions on who you can appoint as an executor that vary depending on where you live.
In most states, you can appoint anyone as long as the person is at least 18 years old and a U.S. citizen. Some states will automatically disqualify an executor if he or she is a convicted felon, while others will leave it up to the court to decide on the matter. It is always wise to familiarize yourself with your state’s probate laws before naming an executor in your will.
Does the executor have to live in the decedent’s state?
In most cases, no. One exception is Florida, where probate law requires that the executor be either a Florida resident or a close relative of the decedent. Other states don’t impose these restrictions, but may have special requirements for out-of-state executors. In most cases, it is favorable for the executor to reside in the state where probate takes place.
If a will names me executor, do I have to serve?
No. It is your decision whether or not you want to serve as executor. And if you accept the role and find out the responsibilities are too much to handle, you can resign at any time. For this reason, many wills name one or more alternate choices for executor. If there is no one available to perform executor duties, the court will appoint a person or institution.
Does the executor get paid?
Yes. The executor generally earns a fee between 2 and 4 percent of the estate’s value and is reimbursed for any out-of-pocket expenses related to administering the estate. The exact amount of payment is based on state law, and typically depends on the size of the estate and what the probate court decides is appropriate. In the end, the court must approve all fees and expenses.
Is probate needed if there is a will?
Yes. All wills must be admitted to probate so the court can determine whether they are valid. Probate allows the court to prove the will is authentic, up-to-date and was written without undue influence. Probate also gives any interested parties a forum where they can object the will.
Until a will goes through probate, it is only a wish list by the decedent. It has no legal power. It is the probate judge's duty to see that the personal representative honors terms of a valid will.
What if a will is deemed invalid?
If a will is found to be invalid, the court distributes the property according to the state’s laws of succession, which offer a prioritized list of heirs and the share of their inheritance.
How can I find out if there is a will?
The first place you should look for a will is the probate court of the county and state where the deceased person lived. If a lawyer, family member or close friend is in possession of the will, the law requires them to submit it to the court within a specific amount of time, typically 30 days.If the will is lost or cannot be located, state law will guide the probate process.
What happens if someone dies without a valid will?
When someone dies without a will – or if the court rules that an existing will is invalid – the situation is called intestacy. Unlike the probate process when someone leaves a valid will, known as testacy, the distribution of property for intestacy is guided by state laws rather than the terms of the will.
In the first step of probate without a will, the court appoints a personal representative. This person (or institution, such as a bank) is in charge of collecting the decedent’s assets, paying off obligations and distributing the remaining assets to beneficiaries.
Next, the assets are transferred to the decedent’s surviving spouse and relatives according to state legislation. Each state has laws that dictate who will inherit the estate’s property and in what proportion. Though it is a rare occurrence, the state will sometimes inherit the decedent’s property if he or she has no spouse or surviving relatives.
What is a will contest?
A will contest is a legal process that occurs when someone challenges the validity of the will. Only people with a financial stake in the outcome of probate are allowed to contest the will, and they cannot do so just because they believe the terms are unfair. A will can only be contested if a person believes the document doesn’t reflect the writer’s intentions.
Some valid reasons to contest a will include:
It is not the most recent version
It was not executed properly
It is the result of fraud, forgery or undue influence
The writer was not mentally competent when it was written
What happens when the will is contested?
If the probate court finds there is a legal basis to contest the will, a proceeding will take place. It is up to the person contesting the will (the contestant) to prove that it is invalid and should not be admitted to probate. Proceedings for a will contest can become very expensive. Funds will be taken from the estate to cover some of the costs, and the contestant will have to pay his or her own costs. Many cases end in a settlement to save time and money and prevent bitterness between the parties involved.
If the court rules in favor of the contestant, it may choose to throw out the entire will or only a part. Depending on state laws and the specific circumstances, an older version of the will may still apply. But in most cases, probate will take place as if the person died without a will.