What Is a Will? What Happens Without One?
Written by Law on Call Staff | Last Updated August 18, 2025
Most adults should have a will in place, regardless of age or financial situation. Wills allow people to name guardians of minor children and pass down assets and belongings at the time of death.
This estate planning tools is essential for making your wishes known (and to help them be carried out). Though not necessarily fun to think about, a clear last will and testament eases the burden on your friends and family.
Main Takeaways
- It’s a good idea for every adult to have a clear, legally sound will in place.
- Your will should detail what property goes to which person and who will care for any minor children you have.
- Without a will, your property and dependents will be subject to your state’s estate rules.
Last Will and Testament Definition
A will is an estate planning tool that allows a person to express their wishes about what should happen to their dependents and belongings after their death. To create a will, you must be 18+ and of “sound mind,” meaning you understand the purpose of a will, what you own, and who your heirs are.
A will becomes active only after death. It goes through the probate process, meaning a judge ultimately determines its validity and how the deceased’s wishes will be carried out.
Common Terms
To better understand wills, let’s go over some related terms:
- Testator
Person who creates the will. - Beneficiaries
Recipients of a testator’s property. They may be people or entities. - Executor
Oversees the administration of the estate and is expected to guide it through probate. - Probate
The process of administering an estate and determining a will’s validity. All wills must go through the probate process, which can be expensive and time consuming. - Codicil
Supplements a will and modifies it in some way, perhaps by making additions or deletions. It is a separate document from a will. - Bequeath
To bequeath something is to pass it down to beneficiaries via a will.
Types of Wills
There are four general types of wills: testamentary, pour over, holographic, and oral.
The majority of wills are testamentary. The information on this page focuses on testamentary wills, though much of what you read here can also be applied to the other types.
Testamentary Will
A testamentary will (last will and testament) is a common and traditional type of will. It is a typed legal document, signed by the testator and two witnesses, that transfers assets to beneficiaries after the testator’s death.
Pour-Over Will
A pour-over will ensures that any assets not already bequeathed or given away will transfer to an established trust when the testator dies.
Holographic Will
A holographic will is handwritten, not typed. Though signed by the testator, holographic wills are not drafted by lawyers.
Oral Will
An oral will is made verbally to others. It serves the same purpose as a written will, which is to make last wishes known and to have them fulfilled.
Don’t leave anything up to chance.
Requirements and Inclusions
Wills must meet certain language and execution parameters in order to be valid. Most states also have requirements related to a will’s content and procedure.
What must a will include?
There are several required elements that all wills must include to be valid. Without these, it may not be possible for the will to be carried out.
Required statements:
- Revocation of any previous wills or codicils.
- Demonstration that the testator is of sound mind and not under duress.
- Clear indication that the testator is the maker of the will.
Required named parties and inclusions:
- Executor
- Beneficiaries and potential alternatives
- Details of significant assets to be distributed
Signatures:
- The will must be hand signed by the testator or by someone at their direction and in their presence. If someone other than the testator signs, they have to include their name and a statement indicating they’re signing on behalf of the testator.
- The signing must be witnessed by two non-beneficiary witnesses.
- The signature must be notarized.
What property should I bequeath?
Your will needs to state what property you’d like to pass down, such as:
- Family heirlooms
- Contents of safe deposit boxes
- Real and personal property
- Vehicles
- Jewelry
- Any other assets
What happens to any remaining property?
Sometimes there’s property left over that wasn’t bequeathed in a will. This is called the residuary estate. For example, a person might bequeath their house, but not specifically address the furniture inside the house.
Usually, a will has a statement on what to do with this residual property, such as to split the residuary estate evenly between their children.
Should I name a guardian for my children?
Yes. If you have minor-aged children, your will needs to appoint guardianship of them. If a guardian is not appointed in your will, your family will have to seek help from a probate court to have a guardian appointed.
Dying Without a Will
Dying without a will (aka intestate) leaves the distribution of your assets up to the state. Under intestate succession, who gets what depends on whether or not the decedent has a living spouse, children, parents, siblings, grandchildren, or other close relatives when they die.
Who gets my assets if I don’t have a will?
If you die without a will, your possessions will go to your family. Your familial situation and your state’s laws will determine specifically who gets what. Each state has its own intestate succession rules, but most are similar.
Here’s how it works in Utah:
- Children but no spouse: the children inherit everything.
- Spouse but no descendants (children or grandchildren): the spouse inherits everything.
- Spouse + descendants of the decedent and that spouse: the spouse inherits everything.
- Spouse + descendants of the decedent and someone other than that spouse: the spouse inherits the first $75,000 of the intestate property plus 1/2 of the balance (called the “Spouse’s Share”). The descendants inherit everything else.
- Living parents but no spouse or descendants: the parents inherit everything.
- Siblings but no spouse, descendants, or parents: the siblings inherit everything.
What if I have no family and die without a will?
If you have no living family and die without a will, your assets will go to the state, which will then decide what to do with it. This rarely happens because the laws are designed to get estate property to anyone who was even remotely related to the decedent.
For example, in Utah (UT § 75-2-103), the decedent’s property won’t go to the state if they leave a spouse, children, grandchildren, great-grandchildren, siblings, parents, grandparents, great-grandparents, aunts or uncles, great uncles or aunts, nieces or nephews, cousins of any degree, or the descendants of a spouse who dies before they do.
What happens to my kids if I die without a will?
If you die without a will and have minor children, the court will appoint a guardian. The court first looks to surviving family, but if no suitable family member can be determined, the children will be placed in foster care.
Frequently Asked Questions
Most adults should have a will. If you have minor children or own a home or other substantial assets, a will is the minimum estate planning device you should have.
The most time consuming part of drawing up a will is gathering all the necessary information, such as addresses of beneficiaries, determining what are your assets are, and deciding the details of your will. This process may take weeks or months. Once all the necessary information is gathered, it typically only takes a day or two to get a first draft to review.
Most likely. It’s a good idea to either make or update a will whenever you experience a major life event. Among other things, this may include marriage, birth of a child, the purchase of a home, divorce, remarrying, or death of a spouse or child. At Law on Call, we can review or update a will you already have in place.
At a minimum, the person(s) selected to act as your executor should know that the will exists and where to find the original copy. There are differing opinions regarding whether it’s a good idea for your beneficiaries to know of the existence of a will:
- If familial relationships are good, it’s usually wise to inform family of the existence of a will.
- If familial relationships are bad, they could be made worse depending on how people are treated in the will. That said, if people are informed of their negative treatment in the will, it is less likely for the will to be disputed, or for a dispute to find success.
Children can be disinherited through a will even though they have a legal right to inherit. Each state has its own rules about how to accomplish this. In Utah, there must be reasonably clear evidence (such as unambiguous statements) within the testator’s will that the disinheritance was intentional.
A person can disinherit a spouse as well, under certain circumstances. Utah is a Separate Property state that follows the Uniform Probate Code (UPC). Under the UPC, a disinherited spouse has a right to a portion of the deceased spouse’s probate estate, non-probate assets, and property titled in either spouse’s name. This is called an Elective Share.
While it’s not particularly common for wills to be disputed, it does happen. Most disputes (aka will contests) are initiated by someone who believes they should be getting more than allotted.
Grounds for challenging hinge on whether the testator had sound mind at the time the will was executed. Sound mind challenges are more common when it’s believed someone exerted “undue influence,” fraud, or duress on a cognitively declined testator, resulting in changes to their will.