Wills: Why You Should Have One and the Lawyer's Role in Its Preparation

Copyright American Bar Association, Reprint Rights Granted

Q: What is a will?
A: A will is an instrument by which a person provides for the disposition of his or her property after death.

Q: Who may make a will?
A: Generally, every person of sound mind and memory, 18 years of age or over, may dispose of his or her property by will.

Q: May a person dispose of property by will in any way he or she wishes?
A: Generally speaking, yes, but with a few exceptions. For example, a surviving husband or wife may have the right to elect to take a fixed share of the estate regardless of the will. Children may be disinherited, although children born after a will is made generally will inherit as if there were no will unless the will shows an intent to disinherit children born after the will was drawn.

Q: What else can be done by a will?
A: By use of a will, an individual may designate as executor someone who is qualified and in whom he or she has confidence. An individual may establish a trust or trusts for the management of assets, the protection of family members, and for the savings of taxes in connection with an overall family estate plan. He or she may give discretionary powers to the executor and to a trustee to spend income or principal according to the changing needs of children or other relatives. An individual may select the persons to receive property and leave it to them in designated proportions. He or she may select a person to be guardian of his or her minor children

By supplementary documents, an individual may provide instructions regarding burial or cremation or anatomical gifts. Even in those cases where a testator desires to leave property to the same persons who would inherit it if he or she left no will, the testator may, by the use of a will, simplify the administration of the estate.

Q: Can a will be changed?
A: A will may be modified or added to or entirely revoked at any time before the maker's death as long as the maker is competent and able physically to change it. An amendment to a will is called a codicil. In some states, the will may refer to a memorandum disposing of tangible property (such as household items, jewelry, automobiles, etc.) which may be changed from time to time without the formalities of a will.

Q: What happens where there is no will?
A: If there is no will, the court will direct the distribution of the estate in accordance with state law. In general, this means to the immediate family--that is, the surviving husband or wife and children. Often the state law does not reflect commonly held attitudes regarding provisions for the spouse as primary and does not provide the spouse adequate means of support. If there is no surviving husband, wife, or children, other blood relatives become entitled to the property and in many cases the situation becomes very complicated. The law is rigid and gives no consideration to the needs or circumstances of the individual heirs. The law further designates who may administer the estate and may require a surety bond at the expense of the estate.

Q: Is the cost of administering an estate greater with or without a will?
A: A skillfully drawn will generally reduces expenses by giving the executor authority to act efficiently without unnecessary delay and expense. It may provide that there need be no surety bond and thus save the estate considerable expense and in many states it can direct that the intervention or involvement of the probate court can be kept to a minimum. If the will is "self-proved," court proceedings for its proof may be avoided.

Q: Is joint tenancy a substitute for a will?
A: Joint tenancy may be a useful method of transferring property, such as the family automobile and the family checking account, at death. In other situations, especially where tax considerations are involved, it can sometimes produce very unfortunate results. Even where joint tenancy is desirable, it does not take care of the situation on the death of the surviving joint tenant or a common disaster, so the necessity for a will is not eliminated. Because joint tenancy property passes outside the will, having too much property in joint tenancy may frustrate the basic family estate plan reflected in the will. Joint tenancy may also produce unexpected results when the "wrong" joint tenant dies first and has led to many disputes, including litigation, between the estate of the original owner and the surviving joint tenant as to whether the survivor's name was added as a matter of convenience or management or whether a gift was intended. A decision to put property in joint tenancy should never be made without consulting a lawyer.

Q: What is the effect of a will on life insurance?
A: If a life insurance policy is payable to an individual, then the will of the insured has no effect on the proceeds. If the life insurance policy is payable to the estate of a person, then the disposition of the proceeds can be directed by will in the same manner as any other kind of property.

Q: What is the effect of marriage or divorce on a will?
A: In many states a will is revoked by marriage unless the will expressly states that it was executed in contemplation of the particular marriage and that it shall not be revoked by such marriage. Divorce or dissolution of marriage either revokes the entire will or those provisions in favor of the former spouse. This depends on the details of your state's law.

Q: Can taxes be saved by a will?
A: Under certain conditions, definite savings can be made by the carefully planned disposition of a family estate in accordance with provisions of a skillfully drafted will. In this regard, the will may provide especially for the surviving spouse (by trust or otherwise) to minimize or eliminate taxes payable on the death of the survivor.

Q: When should a will be made?
A: A will should be made while the maker is in good health and free from emotional stress. A will that is hastily planned and drafted under pressure seldom does credit either to the maker or the drafter. The "deathbed" will is often the subject of long, expensive, and sometimes bitter litigation. Because of changing conditions in family, in size of estate, and in tax laws, a will should be reviewed periodically. A will should always be reviewed when there is a change in marital status.

Q: Who should prepare the will?
A: Generally, a will must be written and witnessed in a special manner provided by law. The drafting of a will requires learning, skill, and experience obtained only by study, training, and practice. Only a practicing lawyer can perform this service.