What is a will?
A will is an official document that outlines what a person's final wishes are for his or her property and other affairs upon death. It doesn't matter how big or small the asset is. From earrings and bibles to cars and houses, anything someone owns can be put in a will.
What are the requirements to create a will?
In order to create a will, the person (legally known as the testator) must be at least 18 years of age. If the person is in the military, however, he or she can be younger. Either way, the person must be of sound mind, which means he or she has the ability to think, reason, and understand for himself or herself. In order for the will to be considered an official legal document, it must be signed by the testator and by two witnesses in each other's presence.
Does the will have to be written?
No. While having something in writing is always your best bet, the will can be nuncupative — which means it's oral or spoken to someone. Nuncupative wills are only valid for assets that are less than $1,000.
What's the difference between a will and a trust?
One of the biggest differences is that a will is public record and a trust isn't. Because trusts are private, they don't have to go through the probate process. Trusts are also much more flexible. Assets and beneficiaries can be added and removed at any time. Another big difference is that a trust allows someone to manage the inheritance of a minor until the minor becomes of age.
Should I have a trust instead of a will?
It's common to think that since the terms of a trust are "better" that you should just have a trust instead of a will. However, this is not the case. Wills come first. You can have a will and not have a trust, but you can't have a trust and not have a will. This is because the courts will determine who gets what for any asset that's not outlined in the will.
Do I need to go through the probate process?
It depends on if the person who passed had a will or not. There are some assets that don't need probate regardless of if there's a will. Things like joint property, life insurance, living trusts, and retirement accounts don't need to go through probate. Even if you don't need to go through the probate process, it's important to make sure arrangements are made for all debts and taxes of the deceased.