Wills allow people to name guardians of minor children and pass down objects and cash assets to friends, relatives, or charities at the time of death. Most adults should have a will in place.
Below, we’ve answered common questions to help no matter your will needs.
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A will is an estate planning tool that allows a person (called a testator) to express their wishes regarding what happens to their dependents and belongings after their death. A will becomes active only after the testator has died.
A will goes through the probate process, meaning a judge ultimately determines a will’s validity and how a deceased person’s wishes are carried out.
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To best understand wills, you first need to understand the key terms related to 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 (and we’ll simply call them “wills”) though much of what you read here can also be applied to pour-over, holographic, and oral wills.
Note: Trusts are another important estate planning document. To learn about the differences between wills and trusts, read our page on Wills vs. Trusts.
A testamentary will 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.
A pour-over will ensures that any assets not already bequeathed or given away will transfer to an established trust when the testator dies.
A holographic will is handwritten, not typed. Though signed by the testator, holographic wills are not drafted by lawyers.
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.
Wills must meet certain language and execution parameters in order to be valid. Most states have numerous consistent requirements related to a will’s content and procedure. There are also rules regarding who is allowed to create a will.
There are limitations on who can create and/or update a will. The person who creates the will must be eighteen years old or older and of “sound mind.”
The courts have interpreted sound mind to mean that the testator is able to understand what they’re doing in creating the will, understand what they own, and are able to remember who their children are.
A will must include specific statements and identify several parties. Required content of a will includes:
Several procedural criteria must be met while creating a will in order for it to be deemed valid:
The procedure differs between testamentary wills and other types of wills. For example, since an oral will doesn’t need to be written, it especially doesn’t need to be typed.
While it is not particularly common for wills to be disputed, it can and does happen. Most disputes (or will contests, as they’re referred to in most states) are initiated by a family member who believes they should be getting more than the will allots them.
The grounds for challenging a will hinge on whether the testator had sound mind at the time the will was executed. Sound mind challenges are more common when there is reason to believe someone exerted “undue influence,” fraud, or duress on a cognitively declined testator, resulting in changes to their will.
A somewhat recent development in will drafting is the “no contest clause.” This is a provision within the will that says anyone who challenges the validity of the will inherits nothing. (Assuming the challenge to the will is unsuccessful.) The “no contest clause” is designed to discourage will contests from people who are getting something, just not as much as they thought they deserved. It does little to dissuade someone who has been completely disinherited from challenging the will.
You need to identify the property you’d like to pass down through your will, but what property you include is up to you. The following are items and assets you may identify in a will to be given to your beneficiaries:
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.
A conditional bequest specifies what terms must be met before a beneficiary can receive their gift(s). Not all wills include such conditions, and in fact conditional bequests are best handled in a trust to ensure enforcability. But, a will allows you to give some insight and direction over the handling of assets your beneficiaries will receive. For example, the testator can state that the beneficiary must have graduated from college or gotten married to receive the bequest.
There are two types of conditional bequests:
Yes. Conditional bequests are only allowed within reason. Courts have rejected certain conditions that they’ve found to be against public policy. Some examples include requiring someone to get a divorce, commit a crime, change their religion, or give up their child in order to inherit. In these cases, the condition is void.
If the court finds that a condition is void, what happens to the gift will depend on what kind of condition it is:
A residuary estate is the portion of a testator’s property that is not specifically bequested in the will. For example, a testator 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.
Dying without a will (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.
Each state has their own intestate succession rules, but most are similar to the example below, which is Utah’s:
If you have no family whatsoever left and die without a will, your assets assets will “escheat” to the state. This means the state will take possession of all assets and decide what to do with them. However, this very 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, 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. (See Utah Code § 75-2-103.)
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 child will be placed in the foster care system.
The cost of a will can vary widely depending on whether you draft it yourself or hire a law firm. It costs less money to draft a will yourself, but you run the risk that your will could be misinterpreted, lacks some required contents, or might be executed incorrectly. Most people do their best, but often still use ambiguous language when speaking or writing.
Lawyers are trained to use specific language to avoid ambiguity and ensure the testator’s wishes are clearly conveyed. With Law on Call, a simple will can cost you as little as $198.
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 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.
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 of the will. 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 generally 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 at least less likely that a good argument can be formed that you were unduly influenced. Ultimately, whether you tell beneficiaries about your will depends on your specific circumstances.
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 called an Elective Share.