Frequently Asked Questions About Wills
Authored By: D.C. Bar Pro Bono Center
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Frequently Asked Questions About Wills
This resource answers common questions about who needs a will and how to make a will.
What is a Will?
A Will is a written document outlining your choices about who will receive your property you own only in your name and how it will be divided when you die. If you have children under the age of 18, you can also name someone to be their guardian in your Will.
If I die without a Will, what will happen to my property?
If you die without a Will (often called dying "intestate"), your property (called your "probate estate") will be distributed according to D.C. laws. It will not go to the government as long as you have a living relative who can claim your estate. If you die intestate, your relatives receive your property in the following order:
- If you leave a spouse or registered domestic partner*, he or she will take a share of your estate according to the following rules:
- If you do not leave a spouse or domestic partner*, your property will go to your children. If one of your children dies before you, that child's share will be split equally between his or her children, if any.
- If you do not have any children, your property will go to your father and mother to share equally.
- If your parents are both deceased, your property will go to your brothers and sisters to share equally (half brothers and sisters share equally with whole-blood siblings).
- If you have no brothers or sisters, your property will go to your aunts, uncles, and first cousins to share equally.
- If you do not have aunts, uncles, or first cousins, your property will go to your grandparents to share equally.
- If you do not have any living grandparents, your property will go to your closest living relatives.
- If you have no living relatives, your property will go to the government.
*Read the next question for more information about domestic partners.
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What is a domestic partner?
- Under D.C. law, you and your partner will be treated as domestic partners only if you register as domestic partners with the D.C. Department of Health, Vital Records Division.
- Two people of the same sex or the opposite sex can register as domestic partners if all of the following are true:
- They must be in a committed relationship and share a residence;
- They must be at least 18 years old and competent to enter into a contract;
- Each must be the sole domestic partner of the other; and
- Neither can be married.
- Once two people have registered as domestic partners, the partnership lasts until it is legally ended.
- Click here for more information about the legal rights of domestic partners.
What if I am separated from my spouse, but not yet divorced, when I die? Will my spouse still get part of my estate?
YES. If you have not made a Will and you are still legally married, even if you are separated, your spouse will inherit part or all of your estate unless you and your spouse have signed a separation agreement that says you are each giving up your right to inherit from the other's estate if one of you dies.
My spouse and I have a common-law marriage. Will my spouse inherit if I die without a Will?
- Yes, subject to the rules in the chart above.
- However, to inherit from your estate, your spouse will have to prove to the probate judge that there was a common-law marriage. This question depends on the facts in each situation, such as whether you and your spouse lived together, filed joint tax returns, and told other people you were married.
- If you are wondering whether you have a common law marriage, you should probably speak with a lawyer.
How old must I be to make a Will?
Anyone 18 years of age or older may make a legally binding Will.
Does a Will have to be in a particular format?
No particular format is necessary for a Will to be considered valid.
Does a Will have to be in writing?
Yes. D.C. law requires that a valid Will be in writing. You can write the Will yourself, in your own handwriting (this is called a "holographic" Will) or type it out on a computer or typewriter.
What are the other requirements for a valid Will?
- You must be "of sound mind" (see below) when you make your Will.
- You must sign your Will or, if you are unable to sign, you may direct someone else to sign the Will in your presence. This is called "executing" the Will.
- You must execute your Will in the presence of two adult witnesses who must also sign the Will. A person who you have named as a beneficiary in your Will should not be a witness to your execution of the Will.
What is a Codicil?
A Codicil is an addition or supplement to a Will that changes the Will. A codicil must be executed the same way as a Will.
If I cannot read, can I still make a Will?
- Yes. Someone must read the entire document to you before you sign your Will.
- In the presence of two witnesses, you should affirm that your Will was read to you in its entirety, you understand it, and it correctly states your wishes.
- The witnesses will then affirm by their signatures that you understand your Will.
If I am unable to write my name to sign the Will, can I still make a Will?
Yes. You have two options. If you sign other documents with a mark such as an "X", then you would use this mark to sign your Will. Or, if you normally let someone else sign your name, you may do this in the presence of your witnesses. A statement in the Will may reflect that this was done.
What does 'being of sound mind...' mean?
- To make a Will, you must be "of sound mind," which means you can understand what you own and to whom you are leaving it.
- Just because a person is elderly, intellectually challenged, or unusual does not mean he or she is not of sound mind.
- By witnessing your Will, your witnesses are giving their word that they believe you are of sound mind.
What is an executor, and do I have to have one?
The executor (sometimes called a "personal representative") is the person who presents your Will for probate and sees to it that the wishes you have stated in your Will are carried out. You will need to name an executor in your Will. If you do not, the Court will appoint someone (often a relative, but not always) as your executor.
Can my executor legally handle my affairs now?
No. Your executor's job does not begin until you are dead and he or she is appointed by the Court. Your executor cannot manage your affairs during your lifetime as an agent would do under a Power of Attorney.
Is a Living Will the same as a Will?
No. A Living Will is a legal document instructing your doctor to withhold or withdraw life-sustaining procedures. It is not the same as your Last Will and Testament, or Will. See the article on Living Wills for more information.
What can I give away in my Will?
Real property (land) and personal property (everything else) that you do not own jointly with another person with right of survivorship.
Is it possible for me to leave something to someone in my Will, but keep that person from giving or selling it to someone else?
- Yes, under some circumstances, but you should speak with an attorney about specific details.
- You may leave something to a person only for his or her lifetime and then direct that the property will pass to someone else after the original recipient dies. This is called a "life estate." For instance, you could leave a life estate in your home to your sister so that she always has somewhere to live, but leave it to your children upon your sister's death. This sometimes creates problems, however, and should be carefully considered.
Do I have to leave my property to my spouse or children?
No. A Will is legal even if it leaves everything to complete strangers and leaves out the spouse and other family members. It is a good idea, however, to mention the spouse or children by name or class (spouse, child, children) to make it clear that they were not forgotten. However, keep reading for more information about what may happen if you leave your spouse out of your Will.
If I decide to leave my children or spouse out of my Will, can they still get some of what I leave?
- Yes. Although you may leave anyone you choose out of your Will, if you leave out your spouse or domestic partner, he or she may elect against your Will and receive up to half of your estate. In other words, your spouse or domestic partner may receive a share of your estate even if you leave him or her out of your Will.
- Additionally, no matter what your Will says, your spouse (or if your spouse is deceased, your dependent children) may receive money from your estate to support them while your estate is being administered. The amount of money includes a Homestead Allowance of up to $15,000, and an additional Family Allowance up to $15,000. Your spouse and children can also claim up to $10,000 worth of your personal effects that you have not specifically given away in your Will (for example, jewelry, clothing, furniture).
Can I give all of my estate to a charity, church or school?
Yes, by naming the charity as a beneficiary under your Will. If, after your death, there is a problem with your attempt to gift the property (for instance, the charity no longer exists), the court will distribute the property as closely as possible to your intent.
Can I say in my Will what is to be done with the proceeds from my insurance policy?
Your Will can only direct what is to be done with the proceeds from your insurance if the beneficiary of your insurance policy is your estate or the executor of your estate. Otherwise, the money from the insurance policy belongs to the person or persons named as the beneficiary on file with the insurance company.
Should I leave instructions for my burial in my Will?
- You may do this, but you should also communicate these instructions to your loved ones separately. Sometimes, when family members lose a loved one, the Will is not reviewed until after the person has been buried or some other final disposition has been made. In such cases, any special requests that you had would be overlooked.
- You may wish to create other documents which provide an opportunity for you to detail all of your final arrangements and leave them with a relative or close friend to give guidance for your loved ones.
What if my family doesn't want to probate my Will?
- The law requires that a person who has possession of a Will must file that Will with the proper probate court within 90 days after your death. Failure to do so can result in a fine and a jail sentence.
- The law does not require the Will to be probated, but once the Will is filed, any person having an interest in the Will can apply to the court to have it probated.
Will my heirs have to pay any estate or inheritance tax?
D. C. has no inheritance tax. Whether there will be any federal estate tax depends upon the value of your estate. Generally, an estate is not subject to estate tax unless its value exceeds $5,600,000. Unlike the federal law, D.C. does not allow portability (sharing) between spouses. Check with an attorney for your specific situation, because the tax laws are constantly changing.
I had my Will prepared in another state. Do I have to make another one just because I live in D.C. now?
Not necessarily. A will prepared in another state may be valid in D.C. as long as it has been signed and witnessed according to D.C.'s requirements.
What happens if I die here and own real estate (land) or personal property in another state? Will my probated Will give my beneficiaries ownership of that property?
- For real property (land) and tangible personal property (things), your beneficiaries will have to take some kind of action in that state. The probated Will may need to be registered with and accepted by the probate court of the state where the property is located. That state's laws will determine what additional procedures have to be followed.
- For intangible personal property such as bank accounts or investment accounts, your beneficiaries generally do not have to go through another state's probate court.
How long is my Will valid?
Your Will is valid forever unless
- You revoke your Will on purpose, or
- You get divorced at any time after signing your Will and there is a property settlement.
How do I revoke a Will?
You can revoke a Will in writing or by physically destroying the document. If you decide to make a new Will, you should expressly revoke any prior Wills in the new Will.
So, do I need a Will?
- If you want to have a voice in how your property is to be distributed when you die, a Will is the best way to accomplish that. If you have minor children in your care or dependents for whom you wish to provide, it is responsible to prepare and properly execute a Will.
- When you die, your property will be distributed whether or not you have a Will. If you die without a Will and you have relatives, it is likely they will wind up with some or all of that property.