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After you die, your will (if you have one) guides many important decisions—including who gets your property, who your executor is, who takes care of your minor children, and how your estate pays debts and taxes.
To get started, list your significant assets. Then decide which items will be left by other methods, outside your will. (For example, you might have already named a beneficiary for your retirement account or bank account, or you might want to keep certain assets out of probate.) Keep in mind that if you're married, each spouse makes a separate will. You can leave only your share of any assets you own jointly with your spouse.
For most people, it isn't hard to decide who gets what. (But use caution if you are considering leaving your spouse or children out of your will.) After you make your first choices, don't forget to choose alternate (contingent) beneficiaries, too, in case your first choices don't survive you.
You can use your will to name an executor, who will carry out the terms of the will. The executor oversees the probate process, the distribution of your assets, and the payment of your debts and taxes. The person you name doesn't have to have any specific training because your executor can always hire a lawyer, accountant, or other professional to help. But be sure that the person you have in mind is willing to serve—the job shouldn't come as a surprise.
If your children are minors, decide who you want to raise them in the very unlikely event that you and their other parent can't.
If you leave property to children or young adults, you should choose an adult to manage whatever they inherit. To give that person authority over the child's inheritance, you can name that person to be a property guardian, a property custodian under a law called the Uniform Transfers to Minors Act (UTMA), or a trustee.
When it comes to how to make a will, you have several choices. You can:
After making your will, you'll need to sign it in the presence of at least two witnesses. If you're using a document called a "self-proving affidavit" with your will (to make things simpler when the will goes through probate court after your death), your signature must be notarized as well. Full instructions are included with Nolo's Quicken WillMaker software.
Properly signing your will can help prevent successful challenges to it. Every state has specific rules about how will-makers must execute their wills. If you don't follow these rules exactly, a court can determine that your will isn't valid. If that happens, your property might pass by intestate succession, usually going to your closest relatives, rather than the beneficiaries you named in your will.
When possible, use "disinterested" witnesses—people who will not receive any property through your will. The will might still be technically valid if an interested witness signs, but the witness might lose whatever gift they would have received under the will if someone challenges it.
Using a self-proving affidavit also might help defend against challenges to your mental capacity. A self-proving affidavit usually states that the witnesses swear that they saw you sign your will and that you appeared to have capacity to make a will. Having the notarized affidavits of your witnesses could provide substantial help in defending your will against a challenge to your capacity.
Your will won't do anybody any good if your loved ones can't find it after you die. Store it someplace safe and clearly labeled, and share the location with your executor. Ideally, you'll keep it with other important documents in a file cabinet or desk drawer—some place your family would look for it. You do not have to keep it in a lock box, and doing so could delay the probate process after your death.
Learn more about making a will in your state through the links below. And to get more plain-English information about estate planning visit Nolo's Wills, Trusts & Probate Center.
Do I need a lawyer to make a will?Most people can safely make a will with good do-it-yourself materials. If you have complex business holdings, complicated debt, or serious family conflicts—or if you simply want personalized legal advice—get help from a lawyer.
Can you disinherit someone in your will?With few important exceptions, you can leave your property to whomever you want. And you can use your will to explicitly disinherit specific people.
Here are the exceptions: If you live in a common law state, your spouse has a right to claim half of your property. If you live in a community property state, your spouse already owns half of your estate, unless you've legally made other arrangements.
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.
If you're concerned about a potential challenge to your will, you could include a no-contest clause. These clauses usually state that if someone challenges your will, the challenger won't receive any money or property through the document—or that they will receive only a very small amount. However, not all states enforce no-contest clauses, and in those states a successful challenger might inherit under your will even if you include a no-contest clause.
What information will you need when making a will?When making your will, you might have to do some prep work to collect specific information. For example, depending on your circumstances, you might need the full names (and possibly the addresses) of your children, beneficiaries, executors, and guardians. You might also need names and numbers of financial accounts, descriptions and locations of specific items you name, and information about any debts you want to forgive.
Does your will need to be notarized?No, to make your will valid, you do not need to have it notarized. You do need to have two witnesses sign it, however. In many states, there is also an option to make your will "self-proving," which does require a notarization.
What happens if I die without a will?If you don't make a will or use some other legal method to transfer your property when you die, state law will determine what happens to your property. Generally, it will go to your spouse and children or, if you have neither, to your other closest relatives. If no relatives can be found to inherit your property, it will go to the state. Additionally, in the absence of a will, a court will determine who will care for your young children and their property if the other parent is unavailable or unfit to do so.
How can I update my will?As long as you are alive, you can update your will. If your changes are relatively simple and can be clearly stated, it's possible to use a codicil. A codicil is a new document that you would attach to your existing will that states the changes you want to make. Like your will, you and two witnesses must sign your codicil.
But in most cases, it's just as easy—and clearer—to revoke your current will and make a new one.
Can I revoke my will?You can revoke your will at any time. The best way to revoke your will is to make a new one that revokes your former wills.