Education for Justice FACT SHEET S-2 Fall 2009
COMMON QUESTIONS ABOUT WILLS
WHAT IS A WILL?
A will states what you want
done with your property after you die.
In your will, you name someone to make sure your wishes are carried
out. That person is called a personal
representative. If you do not name a
personal representative, the court will name one for you.
WHAT IF I DIE WITHOUT A WILL?
If you die without a will,
there are state laws that say how your property would be divided. It would go to your closest relatives. If you have a spouse and children, the
property would go to them, divided up by a set formula. If not, your property would go to other
family members in this order: your
grandchildren, your parents, your brothers and sisters, or more distant
relatives if there are no closer ones.
Some people worry that the
state will take their property if they die without a will. This is very rare. The state can take the property only if:
·
You die with
property in your name alone, and
·
You have no living blood or adopted relatives
WHEN DO I NEED A WILL? You
need a will if you want to:
·
leave property to
a friend or charity instead of family
·
leave property to
people who would not get anything under state laws about dividing property
·
give certain items
to certain people, or
·
leave someone out
who would inherit from you by state law
WHEN DON’T I NEED A WILL? You
don’t need a will if:
·
all of your
property is jointly owned and the other owner has the “right of
survivorship.”
·
you want to leave
your property to family in the order that the law says (see above). For example, if a widow with 2 children dies,
the law gives each child one-half of her property. If she wants this, she does not need a will.
WILL MY PERSONAL REPRESENTATIVE TAKE
CARE OF THINGS IF I GET TOO SICK TO DO IT MYSELF?
No. A will takes effect only after you die. If you want
someone to take care of things if you become disabled or incompetent, you need
to name them in a “Durable Power of Attorney” or Health Care Directive. See our fact sheets, Health Care Directives and Power
of Attorney.
WHAT IF THE ONLY PROPERTY I HAVE HAS
SENTIMENTAL VALUE BUT IS NOT WORTH MUCH MONEY?
You would need a will. Make a simple will and attach a list that
says what property you have and who you want to get it. You can update your list as your personal
property changes, even if you do not change your will.
Things like jewelry, family
pictures, personal papers, tools, or furniture can have sentimental or other
value, but there is no legal paper such as a title to show who owns it.
If you leave these items out
of your will, they might go to a person you do not want to have them, or your
heirs may not agree on who should get them.
Sometimes sentimental property causes the biggest disagreements among
family members.
You do not need a will if you
give your property away before you die.
HOW DO MY HEIRS MAKE SURE MY WILL IS
FOLLOWED?
Your personal representative
handles your bills and gives out your property to your heirs as stated in your
will. They also make sure that life
insurance and retirement benefits are paid.
It is an important job. Check
with the person you want to name as the personal representative to be sure they
want to do it.
If your personal
representative needs a court order to change title to your property or if there
is a dispute about the will, they will file your will with the Probate Court.
WHAT IS PROBATE COURT?
Probate Court decides whether
wills are valid, rules on disputes about wills, and makes orders to change
title to real estate, cars and other property with paper titles. If your will does not name a personal
representative, the court will name one.
If your estate is worth less than $50,000 your will may not have to go
through probate. See our fact sheet, Questions About Probate.
DO I NEED AN ATTORNEY?
You can get a simple will
form in office stores, on the internet or from a self-help book. These forms may work for you, but talk to a lawyer to be sure the form is right
for your situation.
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