When it comes to your last will and testament, you’ve probably got questions — lots of questions — about this important legal document, even if you’ve already created one. We asked Eric J. Lindstrom, an attorney in Edina, Minnesota, who focuses his practice on estate planning, to discuss eight common queries.
What is a will?
This is a legal document that spells out exactly who will get your assets when you die. You appoint an executor who will do the work of distributing assets, plus paying taxes and any money you still owe to creditors. After your death, there’s a judicial process called probate, which determines that the will is valid and makes sure assets are distributed according to its terms. The probate process makes the will public record.
1. Do I need to get my will notarized?
No. Your will doesn’t need to be notarized in order for it to be valid, although some states, such as New York, may require a notary signature for a “self-proving” will (meaning a probate court can accept it as valid without needing to contact the witnesses.) What it does need is to be signed in front of two witnesses, as well as signed and dated by you.
2. Is my will still valid if I move to another state?
As a cautionary measure, it’s a good idea to have your existing will reviewed by a lawyer who practices in your new state. If it was properly executed in your old state, it’s probably fine in your new state, too. But there may be some state-specific nuances, such as state estate tax laws, that would require an update, and doing so could make administering your will after your death a lot simpler.
3. Can anyone challenge my will after I die?
Yes. (“This is the United States, after all, where anyone can challenge anything,” Lindstrom says.) The real question is, are there any merits to the challenge? Are there mistakes in the way it was drafted, or unclear, ambiguous language? “That’s why it’s a good idea to have an experienced lawyer draft your will,” Lindstrom says.
4. What if I want to make changes to my will?
“Wills are revocable and amendable,” Lindstrom says. “You can change them if you’re competent to do so.” An amendment, or codicil, can be made if you’re not making major changes. (For example, if you simply want to name a different executor.) If you are making significant changes, such as altering the percentage of an heir’s share of assets, a new will should be created.
5. How often do I need to update my will?
It depends. In general, Lindstrom recommends having your will reviewed every five years or so. But you’ll want to have it updated any time you’ve had a significant life change, such as a divorce, the death of family member, a major change in net worth or to change an executor or guardian for a minor child.
6. What’s the best way to store my will?
“In our practice, our preference is to have two original signed copies,” Lindstrom says. “We keep one and tell the client to keep the other in a safe place at home.” The important thing is that it be known and accessible to someone searching for it after your death, so make sure your loved ones know where to find it and how to access it. If it’s in a fireproof safe, for example, your loved ones will need to know the combination or where to find the key. Even if you use a digital storage plan, it’s a good idea to have an up-to-date paper copy available.
Note that a safe deposit box may not be the best place to keep a will, especially if it’s your only copy. It can be difficult to access someone else’s safe deposit box after their death and some banks may even require a court order to do so.
7. Do I have to leave anything to my spouse and children?
While laws vary by state, many protect spouses — but not adult children — from being completely disinherited. (In Minnesota, where Lindstrom practices, for example, a spouse needs to give their consent in order to be cut out of a will; otherwise they have a right to 50% of the estate.) If your state does allow you to leave out your kids, you’d want to make sure your will acknowledges them so it doesn’t appear as though you forgot them — and leave your will open to a challenge.
8. Can I leave anything to my pet?
Yes, but not directly. You can’t simply leave money to a pet in your will. What you can do is leave it to someone who can take care of your pet, or better yet, put the money in a trust for the care of your pet.
By Erika Janes
