Do You Need a Will? Estate Planning Basics for Everyone
This guide is general information, not legal advice. Laws differ from state to state and change over time. For advice about your situation, talk to a licensed lawyer in your state.
Estate planning is not only for wealthy people. If you have children, own a home, have savings or simply want a say in who makes decisions for you if you cannot, you need a plan. This guide covers the basic documents and how they work.
What happens if you die without a will
If you die without a will, you die “intestate,” and your state’s laws decide who inherits your property. Usually this means a spouse, children or other close relatives in an order set by law. Unmarried partners, stepchildren, friends and charities generally receive nothing. A court also chooses who will manage your estate and, if you have minor children, who will raise them.
The core estate planning documents
Will
A will says who receives your property, names an executor to handle your estate, and lets you name a guardian for minor children. Most states require a will to be signed in front of two witnesses. Some states also accept handwritten wills under certain conditions. A will usually goes through probate.
Revocable living trust
A living trust holds your property during your life and passes it to your beneficiaries after your death, usually without probate. You can change it at any time. Trusts can also provide privacy and make it easier to manage property if you become unable to do so. A trust only controls property that has been transferred into it.
Durable power of attorney
This document names someone to handle your finances, such as paying bills and managing accounts, if you cannot. Without one, your family may need to go to court to get a guardianship or conservatorship.
Health care directive
Also called an advance directive or living will, it states your wishes about medical treatment and names a health care agent to make decisions for you if you cannot speak for yourself.
Beneficiary designations matter
Life insurance, retirement accounts and many bank accounts pass directly to the people named as beneficiaries, regardless of what your will says. Review these designations after major life events like marriage, divorce or the birth of a child. Many estate plans fail because of an outdated beneficiary form.
What is probate?
Probate is the court process for proving a will is valid, paying the deceased person’s debts and taxes, and distributing what remains. It can take months, sometimes longer, and the records are usually public. Many states offer a simplified process for small estates. Property held in a living trust, owned jointly with right of survivorship, or passing by beneficiary designation usually avoids probate.
When to update your plan
- Marriage, divorce or a new partner
- Birth or adoption of a child or grandchild
- Buying a home or starting a business
- Moving to another state
- The death of a beneficiary, executor or guardian you named
- A large change in your assets
Even without major changes, reviewing your plan every few years is a good habit.
Do you need an estate planning lawyer?
Online forms can work for very simple situations, but small mistakes, such as signing without the right witnesses, can make a will invalid. A lawyer is especially helpful if you have minor children, a blended family, a business, property in more than one state, a family member with special needs, or a larger estate where taxes may be a concern. Many estate planning lawyers charge a flat fee for a basic plan.
Find a Estate Planning lawyer near you
Browse Estate Planning lawyers on NearLawyers, or choose your state to see lawyers grouped by city. You can also search by legal issue and location from the home page. Searching and contacting lawyers through NearLawyers is free.
