5 Will Questions Answered: Last Will & Testement

Frequently Asked Questions About Last Wills and Testaments

What happens if a person dies without a Will?

If someone dies without a valid Will, they are considered to have died intestate. This means their assets will be distributed according to the intestacy laws of their state, not according to their personal wishes.

The state’s pre-determined formula typically distributes assets to the surviving spouse and closest blood relatives, which often leaves out friends, partners, or favored charities. The court also appoints an administrator and guardian for minor children.

What is the difference between a Will and a Living Trust?

A Will is a legal document that dictates what happens to your assets after you die. It only becomes legally enforceable after your death through the court process called probate.

A Living Trust, by contrast, is a legal entity that holds your assets while you are alive and allows them to be distributed privately and immediately upon death, thereby avoiding the time and expense of the probate court process. You generally still need a **Pour-Over Will** even with a Living Trust.

What are the absolute minimum requirements for a Will to be valid?

While requirements vary by state, a Will generally must meet four core criteria to be considered legally valid:

• The Testator (person making the Will) must be of sound mind and legal age (usually 18).
• It must be a written document (typing is standard; handwritten or holographic Wills are sometimes accepted).
• It must be signed by the Testator.
• It must be properly witnessed by a required number of eligible adults (typically two) who sign it in your presence. Some states also require notarization.

Does my Will cover all of my property and assets?

No. This is one of the biggest misconceptions in estate planning. Your Will only controls assets that are titled solely in your name and do not have a beneficiary designation.

Assets that pass outside of your Will include: life insurance payouts, retirement accounts (401k, IRA), property held in joint tenancy, assets held in a Living Trust, and accounts with Payable-on-Death (P.O.D.) or Transfer-on-Death (T.O.D.) designations.

Can I use my Will to appoint a Guardian for my minor children?

Yes, absolutely. This is one of the most critical reasons young parents need a Will. The Will is the only place you can legally nominate a Guardian to take physical care of your minor children if both parents pass away.

The Will can also name a Property Guardian (or Trustee) to manage the assets you leave for your children until they reach a designated age, often older than 18 (such as 21 or 25).