Top 10 Frequently Asked Questions About Wills

People often use a last will and a living trust together (last wills are included in LegalZoom's professional living trust services). Known as a pour-over will, it can be used in conjunction with a trust as a catch-all for any assets not otherwise owned by the living trust.

What are the limitations and disadvantages of a will?

While a last will is a fundamental estate planning document, it's important to understand its limitations so you can build a comprehensive plan.

First, wills must go through probate, a court-supervised process that can take months and becomes part of the public record. This means anyone can see what you owned and who inherited it. Second, a will only takes effect after death, so it doesn't help if you become incapacitated while alive. For incapacity planning, you'll need additional documents like a power of attorney and a healthcare directive.

Wills can also be contested in court by disgruntled family members, potentially causing delays and legal fees for your beneficiaries. And while a will directs how your probate assets should be distributed, it doesn't control assets that pass by other means, like retirement accounts with beneficiary designations, jointly held property, or assets already in a trust.

Finally, a will alone doesn't help you avoid estate taxes. If tax planning is a concern for your estate, you may want to explore trusts and other strategies with an estate planning attorney. These limitations aren't reasons to skip having a will—rather, they highlight why a will often works best alongside other estate planning tools.

How often should I update my will?

Outdated wills won’t do anyone any good; they may only introduce confusion in the probate process. A good schedule is to revisit your will every one to three years, or after major life events such as:

• Marriage or divorce
• Birth or adoption of a child
• The death of someone named in your will
• A change in your relationship with a beneficiary

Approach updating your will like this: If there are no significant changes to your wealth, assets, household, beneficiaries, or executor, a 1-to-3-year time frame is fine. But if any of these situations change, update your will accordingly.

Other events that may call for changes include:

• New life insurance policies or retirement plans
• Real estate investments
• Recently inherited wealth
• Moving to a new state

Common mistakes to avoid with your will

Beyond updating your will regularly, being aware of common pitfalls can help you avoid problems down the road. One of the biggest mistakes is simply not having a will at all. Pew Research found that most Americans don't have one until their 70s, leaving families to navigate intestacy laws during an already difficult time.

Other frequent errors include:

• Using vague or ambiguous language that could lead to court contests
• Failing to coordinate beneficiary designations on accounts with your will provisions
• Choosing an executor who isn't prepared for the responsibility or lives far away
• Not storing your will properly or failing to tell anyone where to find it
• Attempting a DIY will when your estate is complex enough to need professional guidance
• Forgetting to account for all your assets, including digital ones

Many of these mistakes can be avoided by working with an estate planning professional and conducting regular reviews of your documents. Investing time and resources up front can save your loved ones significant stress and expense later.

Do all wills have to go through probate?

No, not all wills have to go through probate; it depends on the estate's value and complexity, as well as the types of assets included. Let's review these factors.

• Value. In some states, if the total value of the estate is under a specific threshold (usually a relatively low amount), the estate won’t need to go through probate. Even if the estate doesn’t meet this monetary threshold, there may be some cases where certain assets, like real property, may be subject to probate.
• Types of assets. Certain assets are considered non-probate assets, like retirement accounts, insurance policies, pensions, bank accounts with payable-upon-death designations, and transfer-on-death securities. These are directly transferred to the named beneficiary and don’t go through probate.

You can take a deeper dive into this topic in our article on whether a will goes through probate. While this is one of the top frequently asked questions about wills, it's important to remember that probate laws vary by state, so be sure to consult your state's guidelines and an estate planning or probate attorney to better understand your situation.

Next steps: How do I decide what's best for me?

Even with this breakdown of frequently asked questions about wills, it's normal to still feel unsure of what you need to protect your family. Whether or not a will is wholly adequate for your estate planning needs depends on your individual circumstances. To decide how to move forward, remember this: The most important thing is that you don't neglect planning your estate. With an estimated $124 trillion in wealth expected to transfer by 2048, proper estate planning is the best way to protect your loved ones and make sure your assets are distributed according to your wishes.

Quick assessment: Do you need a will?

If you're still wondering whether you need a will, consider these questions:

• Are you over 18 years old?
• Do you own any assets—even modest ones like a car, bank account, or personal belongings?
• Do you have minor children who would need a guardian?
• Do you have specific wishes about who should inherit your property?
• Are you married, in a domestic partnership, or have a long-term partner?
• Do you own real estate or have an interest in a business?
• Would you prefer to choose your own executor rather than have a court appoint one?

If you answered "yes" to any of these questions, you would benefit from having a will. The reality is that virtually all adults need a will to ensure their wishes are honored and their loved ones are protected. Even if your estate is simple, a will gives you control over what happens to your assets and who handles your affairs.

Take the next step in protecting your family's future by exploring LegalZoom's estate planning services. Our network of experienced attorneys can help you determine which documents are right for your estate, guide you through the process, and provide the legal expertise needed to comply with state requirements for last wills.

FAQs about wills

Can a will be challenged in court?

Yes, a will can be challenged on grounds including incapacity, fraud, undue influence, the existence of another will, or failure to meet state requirements. Working with a professional helps ensure your will is legally sound and minimizes the risk of challenges.

What is the difference between a living will and a last will?

A last will distributes assets after death, while a living will (advance directive) provides healthcare instructions if you become incapacitated while alive. LegalZoom can help you create both documents.

Where should I store my will?

Common storage options include a fireproof lockbox at home, a safety deposit box, your attorney's office, or the county court. Most importantly, tell your executor and beneficiaries where your will is stored and how to access it.

This article is for informational purposes. This content is not legal advice; it is the expression of the author and has not been evaluated by LegalZoom for accuracy or changes in the law.

Kathleen Crampton contributed to this article.