Although over 50% of Americans consider estate planning important, only about 33% have a valid will.
Many with wills fail to update them after major life events or moves, which can render their wills ineffective. Regular reviews with an estate planning attorney ensure your will complies with state laws and reflects your current family situation.
What Happens If You Die Without a Will?
If your will is invalid or you have none, you die intestate. The state probate court then decides how to distribute your assets according to state intestacy laws, which may not match your wishes.
The court appoints an administrator to:
- Compile asset inventories
- Pay debts and taxes
- Distribute assets to heirs based on state law
- Charge fees deducted from the estate for services
What Does a Valid Will Do?
A will is the cornerstone of estate planning. Upon death, it:
- Names a personal representative (executor)
- Specifies how debts and taxes are paid
- Distributes property among heirs
- Establishes guardianship for minor children
Many include additional documents like trusts or advanced directives to protect assets and manage care if incapacitated.
Legal Requirements for a Will
- Must be 18 years or older
- Have testamentary capacity (sound mind)
- Signed by the testator
- Signed by two adult witnesses
How Do Community Property and Common Law States Affect Estate Planning?
In community property states, spouses jointly own marital property and usually receive at least half the estate.
As of 2022, seven states plus Washington, DC recognize common law marriage. Recognition varies, so consult an attorney to clarify your status.
For unmarried couples, options like joint tenants with rights of survivorship (JTWROS) and payable-on-death (POD) accounts help transfer assets without probate.
Types of Wills
| Type of Will | Description |
|---|---|
| Simple Will | Names executor, funeral wishes, and guardians for minor children. |
| Joint Will | One will for spouses; not recognized in all states. |
| Holographic Will | Handwritten will, unwitnessed, valid only in some states. |
| Pour-Over Will | Transfers assets into a living trust upon death. |
| Electronic Will | Electronically signed and stored wills allowed in some states. |
| Testamentary Trust | Trust created by will that takes effect after probate. |
| Nuncupative Will | Oral will, generally not valid in most states. |
Is Your Will Legal?
Wills must comply with your state’s laws to be valid. Online templates can be risky and might not reflect state-specific requirements. An experienced estate planning attorney can help tailor your will, provide original and copies, and guide you on safe storage.
When and How Should You Update Your Will?
You can update or revoke your will anytime if you are of sound mind. Review it annually and especially after major life events like marriage, divorce, or birth of children. Invalid wills trigger intestacy laws.
Consult our estate planning attorneys to keep your will valid and compliant with any changes in state law.
We hope you found this article helpful. If you’d like to discuss your particular situation, please contact our Sherwood or Searcy office at 501-834-2070 to schedule a consultation. We look forward to working with you.