If you die without a last will (known as dying "intestate"), the state will decide how your property is distributed. In community property states, this means that your community property will be given to your spouse (or domestic partner in some states). Any property you owned in joint tenancy would automatically go to the joint owner, and any property held in trust would go to the beneficiaries (subject to the spouse's share in some states). But any property in your name alone would go to the persons named in your state's laws.
Each state has its own laws about how intestancy works, but in general your property may be distributed using the following guidelines:
- If you have a spouse and children, the property is divided among them.
- If you have a spouse and parents or siblings, but no children, some states give all to your spouse, but other states give your parents or siblings a share.
- If you have children but no spouse, your children would get your property.
- If you have no children or spouse, your parents would get your property, except in a few states, which give a share to your brothers and sisters.
- If you have no spouse, children, or parents, your brothers and sisters would share your property.
- If you have no spouse, children, parents, brothers, or sisters, your property would go to your grandparents, aunts and uncles, or nieces and nephews, in that order.
- If there is no one to give your property to, it would become property of the state of your legal residence.
Legal Requirements for a Last Will and Testament
A probate court will not enforce your last will unless the following criteria are met:
- Soundness of Mind. You must be of sound mind.
- Free Will. You must be acting of your own free will, without undue influence or duress from others.
- Sign in front of Witnesses. You must sign and date the last will in front of at least two people, neither of whom can be related to you or entitled to receive anything under the last will.
You do not have to get your last will notarized, although, a LegalZoom Last Will and Testament allows you to "self-prove" it, if allowed under state law. A "self-proving" last will is one that has an attached notarized affidavit stating that the will was properly signed and witnessed, and that it is the last will of the person signing it. If your last will is self-proving, the witnesses will not need to be located after your death to show that the document was properly executed: the affidavit serves that function. Since the expense of locating witnesses would be paid by your estate, self-proving your last will can allow more of your property to pass through to your heirs and not be eaten up by administrative costs.
In addition to these requirements, the last will should be typewritten or computer-generated. Some states allow last wills in which all of the important sections are entirely handwritten (called "holographic" wills). Handwritten last wills are not recommended because most are written improperly and are not as thorough as the LegalZoom Last Will and Testament. Also, courts can be unusually strict in determining whether a holographic last will is authentic.