What happens if I die without a will?
In the event you die without use of a will or another legal method of transferring your property, the state will determine the fate of your property. Most generally it will go to your spouse or closest of kin. If you do not have relative to inherit your property, then by default the state will take it.
Additionally, in the event you have young children or others in your ward, in the absence of a will, a court will determine who will care for them.
Finally, there are specific laws if you are part of an unmarried same-sex couple. Depending on the state you live in, they may or may not be entitled to inherit anything unless it is in your will.
Your best bet is to consult a family law attorney that specializes in wills. They will be able to counsel you as to the law in your area.
Do I need an attorney to create my will?
If you are an adult of sound mind, you can create a will without an attorney. There are a few items you must insure that not omitted.
First, you must have at a minimum of two witnesses which watched you sign the will. In most states, the witnesses must be people who will not be intermitting anything from you.
Secondly, you must sign and date your will.
To help simplify court procedures after your death and to help prove the validity of your will, you can also have the will notarized, although it is not mandatory.
Although you do not have to have a lawyer write your will, if you wish to leave a home and/or investments or if you have persons in your ward, you may wish to find an attorney who specializes in wills. Because law is quite complex, you will want to insure your desires are carried out after your death.
Are handwritten wills legal?
Yes, a handwritten will is legal. If it unwitnessed, it is then called a holographic will. The holographic will must be in the person’s own handwriting and signed. You can also purchase will writing kits. Although a holographic will is considered better than no will at all, it can create difficulties for the heirs of the estate in some instances. Moreover, because the laws around a will are complex, you may wish to seek counsel.
Can I assign a guardian of my children in a will?
Yes. If both parents of a child die or become otherwise unable to care for a minor child, another adult -- called a "personal guardian" -- must step in. The personal guardian will be responsible for raising your children until they become legal adults. You and the child's other parent can use your wills to nominate someone to fill this position. To avert conflicts, you should both name the same person. Additionally, you can use your will to create a trust for any property the child inherits and to name a trustee to handle the trust property until the child reaches the age you specify.
Must I leave something to my spouse and children?
The law protects surviving spouses from being left with nothing. If you live in California, which is a community property state, your spouse automatically owns half of all the property and earnings (with a few exceptions) acquired by either of you during your marriage. You can leave your half of the community property, and your separate property, to anyone you choose.
If you don't plan to leave at least half of your property to your spouse, either through your will or outside it, you should consult a lawyer -- unless your spouse willingly consents in writing to your plan.
Can someone challenge my will after I die?
Very few wills are ever challenged in court. When they are, it's usually by a close relative who feels somehow cheated out of a share of the deceased person's property. To get an entire will invalidated, someone must go to court and prove that it suffers from a fatal flaw: the signature was forged, you weren't of sound mind when you made the will, or you were unduly influenced by someone.