Top 10 Frequently Asked Questions About Wills

What happens if a person dies without a last will?

When a person passes away without a last will, their assets are passed through the courts for distribution according to the laws of intestacy. In other words, the deceased person's assets will be distributed according to the laws of the state—not necessarily according to the deceased's wishes.

Intestacy laws vary by state, but generally speaking, money and other assets typically pass to blood relatives. The state will attempt to find any living relatives and pass the estate to them. Here are some examples of intestate succession:

• If a person dies with a spouse, the estate passes to the spouse.
• If a person dies without a living spouse, the estate passes to their children equally, if they have children.
• If there are no children and no spouse, the estate passes to any living parents.
• If the person doesn’t have a living spouse, children, or parents, the estate passes to their siblings.
• If the deceased has no immediate family, their estate passes to other blood relatives, like grandchildren, aunts and uncles, or cousins. Otherwise, it passes entirely to the state.

Can a will be challenged in court?

Yes, a will can be challenged in court by beneficiaries or would-be heirs in certain situations.

• Incapacity: You have proof that the person who made the will (known as the testator) was not of sound mind when the document was created.
• Fraud, forgery, or undue influence: There is evidence that the testator was tricked or coerced into adding or removing certain elements or beneficiaries of the will, or that their signature was forged.
• Existence of another will: There is a newer will or other versions of the will.
• Unmet state requirements: The will wasn’t drafted or signed according to state law, meaning that it might not be legally enforceable.

It’s important to first determine if you have evidence of legal grounds to contest the will. After all, the legal process can be quite lengthy and expensive, so you want to make sure you have the highest chance of success.

What should be included in a will? 

First, you’ll want to appoint an executor of your estate. This is the person that will handle your estate according to your will, seeing it through the probate process, if necessary.

Next, you’ll want identify the beneficiaries of your assets and personal property. Be as specific as possible—any ambiguity in a will could cause it to be contested in court.

In addition to these essential elements, last wills can include:

• A list of items that might not have financial value but have significant personal value, such as like family keepsakes, photographs, and so on—and the beneficiaries of these items
• If you have minor children, name a guardian and a successor guardian to care for them (it’s a good idea to have a conversation with your intended guardians before you name them to this role)
• A person to take care of your pets
• Preferences for a funeral as well as burial or cremation

Does a person have to have a minimum amount of assets to create a last will?

No, there is no minimum amount of assets to create a last will. A person can make a last will to distribute assets worth anywhere from $1 to $10 million and beyond. 

Even if you think, “I don’t have much,” remember that any items you own might have significant monetary or sentimental value, like cars, jewelry, flight and hotel points, artwork, copyrights and trademarks, and even furniture and kitchenware. A last will is the best place to determine who inherits your assets and how your estate—no matter how big or small—is handled.

Of course, the distribution of any assets can have tax implications. For that reason, it’s important to understand how inheritance will be taxed as you make your estate planning decisions. We recommend consulting with estate planning attorneys and tax professionals who are well-versed in estate and tax law, especially for large or complicated estates.

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

The main difference is that a last will is used to distribute assets and specify certain final wishes after death, while a living will is used while someone is alive. 

Also known as an advance directive, a living will is created while a person has the capacity to make their own decisions, with the purpose of providing healthcare instructions in the event that they become incapacitated. For example, a living will can include certain directives, such as whether or not life support is desired, and designate a medical power of attorney.

Living wills are simpler to set up and modify, but it’s important to work with a professional to set up your living will to ensure your wishes are unambiguous and that the document complies with your state’s laws.

What are the main benefits of a living trust vs. a last will?

A last will's main benefit is its simplicity. The drawback is that your family members and other beneficiaries may have to wait months until your assets go through probate court and are distributed.

A living trust, on the other hand, can be used to transfer property and assets to beneficiaries without going through the probate process. This can save time and money. Also, it keeps your estate private, whereas a last will, once probated, will become public record.

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 when used in conjunction with a trust, it can be used as a catch all for any assets not otherwise owned by the living trust.

Can I write my own will, or do I need a lawyer?

Yes, you can write your own will. Many people choose a “do-it-yourself” will because it’s cost-effective and convenient. 

This option is ideal for simple estates, meaning that they might have easily valued assets and aren’t above the estate tax threshold (currently about $14 million)—and even with a simple estate, any ambiguity or noncompliance with state law could cause your will to be contested or even rejected by the court.

You may get extra peace of mind by working with a professional to help you create your will, especially if you have a complex estate. An estate planning attorney can help you evaluate your assets and provide legal guidance on distributing complicated assets, like businesses or jointly held property ownership. They can also shed light on state or federal estate tax laws, and ensure that your will is legally enforceable. LegalZoom offers guided DIY products with the option to add attorney guidance and review of your documents.

So, long answer short: While you can write your own will, hiring a professional is the best option for complex estates and individuals who want to ensure that their will is properly executed.

How often should I update my will?

Outdated wills won’t do anyone any good—they may only introduce confusion in the probate process. To avoid lengthy probate, confused beneficiaries, and potentially intestate succession, you should update your will routinely. A good schedule is to revisit it every one to three years or after major life events such as marriage, divorce, adoption, the birth of a child, the death of someone named in your will, or a change in your relationship with one of your beneficiaries.

Approach updating your will like this: If there are no significant changes to your wealth, assets, household, beneficiaries, or executor, the one-to-three year time frame is great. But if any of these situations changes, update your will at that time.

Other events that may call for changes to your will include new life insurance policies or retirement plans, real estate investments, recently inherited wealth, or even moving to a new state.

Do all wills have to go through probate?

No, not all wills have to go through probate—it depends on the value and complexity of the estate and 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 about whether or not 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.

Where should I store my will?

Deciding where to store your will—and who has access—is extremely important. The good thing is that you have several options. 

A common choice for will storage is a fireproof and waterproof lockbox in your home. This option is cost-effective and gives you complete control over the whereabouts of your will, as a lockbox can be stored wherever you choose and move with you. Plus, a lockbox can be found easily by family members after your death.

You can also store your will in a safety deposit box at a bank. While this is typically one of the safest storage solutions, some might consider it too safe. Access to a safety deposit box can be difficult, with some states even requiring executors to have a court order to open it after your death.

Additional storage options are the county court and your attorney’s office. Some county courts or clerks offices accept deposits of wills for a fee and will store them until probate. Additionally, your attorney may hold your original will or a copy of it for safekeeping. 

For those who prefer digital storage, keep in mind that while this is a convenient solution, many states don’t yet accept digital wills. You may need to augment digital will storage with physical storage of the original document. Take a look at this map of states that have adopted versions of the Electronic Wills Act to see if your state accepts digital wills.

No matter which option you choose, the most important thing to remember is to tell your executor and beneficiaries where your will is being stored and provide access information.

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. Proper estate planning is the best way to protect your loved ones and make sure your assets are distributed according to your wishes.

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.