A will is a legal document in which a person, the testator, states his or her wishes for the distribution of property at death. If the person has young children, the will usually also nominates guardians for them--someone who would raise the children if the parents couldn't. A will also names an executor, also called a personal representative, who is the person who will settle the estate, and, if a probate is necessary, be appointed as the legal representative of the estate until it is distributed to the will's beneficiaries.
A will doens't need a lot of magic words to be valid. But the person making the will must:
- understand what he or she is doing (this is called legal capacity)
- identify himself or herself
- name beneficiaries for his or her property, and
- sign the will in front of witnesses, according to state law.
Some states allow a person to handwrite a will (this is called a holographic will), but it's better to type one out. That way, it's easier to see if someone else has tried to change the will.
Where Are Wills Stored?
If you want to find the will of soemone who has died, where should you look? There's no official place for people to store their wills, and there's no state registry to store your will before you die. Most people store their wills with their other important papers, sometimes in a safe deposit box, sometimes in a fireproof safe or cabinet in their homes, sometimes just in a box with other important papers.
Ideally, you want to find the original, signed will, not a copy. If all you can find is a copy, you can submit that to the probate court and explain to the court that you couldn't locate the original. If no one else comes forward with an original will for that person, and no other evidence can be found that another will was created, the court may accept a copy of a will.
If, after a thorough search, no one can find a will at all, you'll have to conclude that there is no will. In that case, the person's estate will be subject to the state's rules about how inherits when there is no will.
When a person dies and leaves behind a will, whoever has possession of the will is supposed to submit it to the probate court in the county where that person died. This is sometimes called "lodging" the will. Once lodged, the will becomes a public record, to be read by anyone who's interested in what it says. Here's a link to your state's probate courts.
Even though the law requires that a will be submitted to the local probate court, there are really no actual penalties for not doing so, especially if the estate is too small for probate to be required. If an estate does have to go through probate, though, filing the will is the first step in getting that process started.
How to Read a Will
It's not like the movies. Hardly any families have a meeting with a lawyer to read the will aloud. Instead, reading a will is like reading any legal document--take it slow, look up words that you do not know, and focus on what the document actually says, as opposed to what you wish it would say. When you are reading a will, here's what you need to find out:
- Who is named as the executor or personal representative? This is the person who is in charge of settling the estate.
- Who are the beneficiaries? These are the people who inherit the property.
- Is there a survival requirement? Most wills require that beneficiaries must survive the deceased person by a certain period of time, often five or 30 days, before they can inherit.
- Are there any special conditions that need to be met before the estate can be distributed? Does the will require, for example, that the will-maker's son enroll in a college degree program before he can receive his share of the property?
- Was the will properly signed? You need to make sure that the will was properly signed in front of witnesses, meeting the state's requirements.
- Are there any codicils to the will? A codicil is a separate document, signed later, that changes some of the terms of the will.
How to Settle an Estate When There's a Will
If the value of a person's estate is above a certain limit, called a "small estates limit," their estate must go through a probate proceeding before assets can be distributed to the people who inherit the assets. This is true whether or not there is a will.
Probate is a process that takes place in court. The purpose of probate is to make sure that a deceased person's wishes are respected and that their property is distributed as directed by their will. The person named in the will as the executor, or personal representative, is appointed by the court. After that, the executor is in charge of protecting the estate's assets, identifying and valuing them, paying the debts and expenses of the deceased person, and, in the end, distributing the assets as directed by the will.
If a person left a will, but dies with a small estate, as determined by each state, the estate does not need to go through a formal probate proceeding. Instead, the executor or personal representative can file some simple paperwork and then pay the last bills and expenses, identify the property, and distribute it to the beneficiaries. (Each state's process is a little different.)
When a person dies without a will, or if the will cannot be found, then the estate will be distributed to their heirs, as determined by state law. These laws are called intestacy statutes. For example, in most states, if a person dies and leaves behind no spouse but two living children, those children would inherit the estate, in equal shares.