What happens if I die without a will?
If you don't make a will or use some other legal method to transfer your property when you die, state law will determine what happens to your property. This process is called "interstate succession." Your property will be distributed to your spouse and children or, if you have neither, to other relatives according to a statutory formula. If no relatives can be found to inherit your property, it will go into your state's coffers. Also, in the absence of a will, a court will determine who will care for your young children and their property if the other parent is unavailable or unfit.
What makes a will legal?
Any adult of sound mind is entitled to make a will. (And if you're reading this article, you're of sound mind.) Beyond that, there are just a few technical requirements:
- The will must be typewritten or computer generated.
- The document must expressly state that it's your will.
- You must date and sign the will.
The will must be signed by at least two, or in some states, three, witnesses. They must watch you sign the will, though they don't need to read it. Your witnesses must be people who won't inherit anything under the will.
You don't have to have your will notarized. In many states, though, if you and your witnesses sign an affidavit (sworn statement) before a notary public, you can help simplify the court procedures required to prove the validity of the will after you die.
Can I use my will to name somebody to care for my young children, in case my spouse and I both die suddenly?
Yes. If both parents of a child die while the child is still a minor, another adult -- called a "personal guardian" -- must step in. You and the child's other parent can use your wills to nominate someone to fill this position. To avert conflicts, you should each name the same person. If a guardian is needed, a judge will appoint your nominee as long as he or she agrees that it is in the best interest of your children.
The personal guardian will be responsible for raising your children until they become legal adults. Of course, you should have complete confidence in the person you nominate, and you should be certain that your nominee is willing to accept the responsibility of raising your children should the need actually arise.
Copyright © 2002 Nolo
Disclaimer
This publication and the information included in it are not intended to serve as a substitute for consultation with an attorney. Specific legal issues, concerns and conditions always require the advice of appropriate legal professionals.
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