A will is a legal document that provides instructions for what an individual would like to have happen to their property upon death. A will is also a place where parents can name a guardian for any minor children or adult children with developmental disabilities. Each state has different rules about how to create a valid will, the chart below outlines various state rules. There are different types of wills:
There are several do-it-yourself will options, if you have a relatively simple estate, or cannot afford an attorney. There are online services, books, and computer software that can cost anywhere between $35-$200. You may also want to consider hiring an estate planning attorney, especially if you have a complicated estate. When an attorney helps you create a will, you will typically be charged a flat fee or an hourly rate. How much it will cost depends on factors such as the size of your estate or how complicated your wishes are. There are legal aid organizations that provide free or low-cost legal services for people with low and moderate income levels. Visit http://TriageCancer.org/Resources/StateResources, for legal resources in your state.
When someone dies (the decedent), the estate must be probated. Probate is the process through which a court supervises the gathering and distribution of the decedent’s property. Each state has a slightly different probate process; however, they generally fall into two categories: Uniform Probate Code (UPC) and non-UPC.
The main benefit of the UPC is a transition from mandatory court proceedings for probate to less formal, paper-driven processes.
If someone has a will, the estate must first pay the decedent’s debts and funeral and estate administration expenses then any remaining property is distributed according to the terms of the individual’s will. Executor named in the will distributes property. The executor must be approved by the probate court before the executor has authority to handle the affairs of the estate and property distribution.
Consequences for Not Having A Will
If someone dies without a will their property will be distributed according to the state’s intestacy statute. The intestacy statute is a ranking system of family members who inherit from the decedent’s estate. Each state has a different set of rules with respect to intestacy. Once the estate has paid all of the decedent’s debts, funeral, and estate administration expenses, then the probate court follows the state’s intestacy statute to determine how the property should be distributed. In doing so, the court hopes at least to come close to what the average deceased person wants.
Intestacy laws vary greatly from state to state. Typically, there is a ranking system where the decedent’s surviving spouse and/or children have priority over any other surviving relatives.
State Requirements for Creating A Will
|State||Written/Oral/ Statutory||Number of Witnesses||Notarized||UPC/Non-UPC||Notes|
|District of Columbia||Written||2||Not required||Non-UPC|
|Indiana||Written/Oral (I.C. 29-1-5-4)||2||Not required||Non-UPC|
|Kansas||Written/Oral (K.S.A. 59-608)||2||Self-Proving||Non-UPC|
|Louisiana||Written||2||Required in addition to witnesses||Non-UPC||Nuncupative testament by private act (CCP 2884) and Mystic testament (CCP 2885) must be proved by 3 witnesses|
|Mississippi||Written/Oral||2||Self-Proving||Non-UPC||Oral will must be written within 6 months to be probated.|
|New Hampshire||Written/Oral (only for soldiers; N.H. Rev. Stat. Ann. § 551:15)||2||Self-Proving||Non-UPC|
|New York||Written/Oral (limited to military NY CLS EPTL § 3-2.2)||2||Self-Proving||Non-UPC|
|North Carolina||Written/Oral (limited N.C.G.S. § 31-3.4)||2||Self-Proving||Non-UPC|
|Ohio||Written/Oral (Ohio Rev. Code Ann. § 2107.60)||2||Not required||UPC|
|Oklahoma||Written/Oral (limited to military Okla. Stat. tit. 84 § 84-46)||2||Self-Proving||Non-UPC|
|Tennessee||Written/Oral (Tenn. Code Ann. § 32-1-106)||2||Self-proving (for wills executed prior to July 1, 2016, see Tenn. Code. Ann. § 32-1-104(b))||Non-UPC|
|Texas||Written/Oral (only if made before September 1, 2007)||2||Self-proving||Non-UPC||Has an informal probate process similar UPC states|
|Vermont||Written/Oral (Vt. Stat. Ann. tit. 14 § 1-6)||2||Not required||Non-UPC|
|Washington||Written/Oral (limited to military. Wash. Rev. Code § 11 12-025)||2||Self-proving||Non-UPC|
|Wisconsin||Written/Statutory||2||Self-proving||Non-UPC||Has an informal probate process similar UPC states|