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). Separate property will generally be distributed according to these rules, with variations depending on state law:
If you have a spouse or domestic partner, he or she will receive:
- All of that property, if you leave no children, descendants of a deceased child, parents, siblings, nieces, or nephews
- Half of that property, if you leave one child or children of one deceased child
- One-third of your property if you leave two or more children, or one child and descendants of one or more deceased children
Any property that is not given to your spouse will be distributed to the following people, in this order:
- Your children, or if they are not alive, their children
- Your parents
- Your brothers and sisters or, if they are not alive, their children
- Your grandparents or, if they are not alive, their children (i.e., your uncles and aunts)
- The children of your deceased spouse
- Any relatives of your deceased spouse
- 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.