There are two basic ways to see to the distribution of your property after death. These are by testate succession or intestate succession. The first, testate, is by your instructions set forth in a will. The second is by the laws of your state if you die without a will. If you missed last month's article, it might be worth reviewing at this point.
Let's start with the basic question of what, exactly, is a will? It is a document which, in its most basic form, gives instructions for the disposition of your property after you die. It can also take care of such things as setting up trusts for your children, and appointing guardians.
The first question is, do you need a will? To decide this, first take a look at the laws of intestate succession in your state. Do they dispose of your property in the manner you desire? If so, you may not need a will, but you must be careful. The intestate succession laws of your state will dispose of ALL of your property in the same way. You can't give your baseball trophies to your cousin, and your jewelry to your sister and let rest go the way the state says. So, unless the intestate succession laws distribute everything EXACTLY the way you want, you need a will.
The contents of a will can be very simple and broad, or complex and detailed, as suits your particular needs. The basic requirements of a will are that it states who you are, that it is intended to be your will, that it dispose of your estate (who gets what), it be dated and signed, and be self proving or witnessed (more on this later). The person making the will must also be of sound mind (not necessarily body) at the time the will is made. All this means is that the testator (the person making the will) knows who he or she is; the natural objects of his or her bounty (who is family, basically), and the extent of his or her estate. This is determined at the time the will is made. This means that Crazy Old Aunt Martha, who fades in and out of reality, can make a valid will if she is lucid at the time.
What can you do with your property in your will? Anything you want. It is not uncommon to leave everything to a spouse, but this is by no means required. You can leave all of your property to one person, or group of people, or you can make specific bequests. A specific bequest is a designation that a particular item be given to a particular person, with the rest (the remainder) going somewhere else. If you do this, just keep in mind that specific bequests must be honored first. Normally this isn't a problem, but it can be, particularly if the specific bequest is in the form of cash. Say you leave your favorite uncle $20,000.00 with the rest of your estate going to your spouse. You may have plenty now, but lets pretend things go badly before you die, and your estate dwindles to $15,000.00. Your favorite uncle will get that $15,000.00, and your spouse nothing because the specifc bequest must be met first, either in whole or to the extent possible. You could cover this by leaving your uncle a percentage of your estate or $20,000.00, whichever is less, and protect your spouse.
Even without specific bequests you can still divide your estate among several persons by category - ie., to your children in equal shares. Or perhaps to your children as alternates in the event your spouse does not survive you. This could be to your surviving children only, or to all your children and have grandchildren be included in the event one of your children dies before you. This can be done "per stirpes," or by "right of representation," in which the children of the deceased child share that deceased child's portion of the inheritance. (For example, Decedent has one surviving child and grandchildren from a deceased child. If there are three children of the deceased child, each would receive one third of the deceased child's share, with the surviving child receiving a full share.) It could also be "per capita," in which all the living children and children of the deceased child receive equal shares. (Same example as before, except that each would receive one fouth of the estate.)
What if you don't want someone to inherit anything? You can leave them out, or specifically disinherit them. If the person is a close blood relative or spouse, someone who could normally be expected to inherit, it is usually better to identify them by name and relationship and then state that they receive nothing. This prevents them from coming to court and saying that you merely forgot them.
As I mentioned earlier in the article, if you have minor children you can also use your will to set up trusts for them and name the trustee(s) and alternates. You can also name your preferred guardian(s) and alternates.
So, after you die, who handles all of this? You need to name an executor (someone in charge of distributing your estate according to your will), and an alternate in case the first choice can't, or won't, serve as executor. If none is named, or neither can serve, the court will appoint someone. I prefer a trusted relative to a court appointed stranger.
How are wills prepared? Usually wills are typed and then witnessed. The witnesses serve to authenticate the will - to prove it is genuine. California requires two witnesses, but many states require three. It is a good idea, therefore, to have three people witness your will. That way it will be good in any state. (California doesn't have a problem with more than two witnesses - that's just the minimum.) Witnesses should also be disinterested. If someone who is to receive anything substantial (or anything at all in some places) under the will acts as a witness a court may presume that there was some coercion or duress, and invalidate the will as to that person if not convinced otherwise. The witnesses should be told that this document is the testator's will, and testator and witnesses should sign in each other's presence.
Another type of will is a "holographic" will. No, it is not a 3-D photograph of the will, but one prepared in the testator's own handwriting. This is a self proving document in that it requires no witnesses to authenticate the will. If there is a question as to whether the testator actually wrote it, the court can accept evidence relating to the handwriting of the testator and determine whether the will is genuine.
Some states, such as Calfornia, may have a statutory will. In California this is a boiler-plate type of will. Some provisions are typed - such as the declaration that this is the person's will. The specifics of property distribution, trusts and trustees, guardians, executors and the like are fill-in-the-blank. It must also be witnessed.
What I have set forth here are the basic considerations regarding a will, and is intended only to give you a general background. As always, individual situations vary, and a lawyer shoud be consulted about specific questions relating to you.