| Read Time: 2 minutes | Elder Law

Most people know that a will is a written document providing the last wishes of a person. It will detail how the person’s property will be given to his or her heirs. However, there are things many do not know about how a will is created or how it is used.

1. If a Person Dies Without a Will, Property Does Not Go to the State

Every state has laws detailing where property goes if a person dies without a will. These are called laws of intestate succession. Normally, property will first go to the spouse or children. If none exists, it will go to grandchildren, then parents, brothers and sisters, aunts or uncles and cousins.

If none of these relatives are alive, it is only then that property will go to the state. However, a will is still important because a person can identify exactly to whom he or she wants personal property to be transferred. It is also important if the person has minor children because the will names who the person wishes to be guardians.

2. Persons should not write Their Own Wills

some People think they can write their own Will. This may or may not be a good idea because if the language is wrong, their wishes may not be carried out. Anyone signing a will normally needs two witnesses to declare that they have witnessed the person signing the will and that the person was mentally sound when it was signed. This is referred to as attestation of a will. A person writing their own will may not be versed in the legal terms necessary to properly carry out their wishes or the procedural formalities needed to ensure proper execution.

3. Handwritten Changes to a Will are not Allowed

Many people who have a will will experience changes in their lives or change their minds over whom to give their property. Simply crossing out one name in a will and writing in another is generally not valid. Usually, an amendment to the will, called a codicil, is needed. Like the original will, a codicil requires the signature of two witnesses, as well as an attestation of witnesses.

4. A Will does not Automatically Transfer Property

When a person dies leaving a will, it must be presented to a special court for approval. This process is called probate. A probate court judge will review the will to ensure it is valid and will appoint a person to carry out the instructions in it.

The probate process can take months or sometimes years to complete. Only when the court approves of the will can the property itself be transferred.

5. Not all Property is Transferred by a Will

Some property, such as life insurance proceeds or some real estate may be transferred differently than is stated in the will. If a person has a life insurance policy that directs the proceeds to go to A, but the will states that “all of my property goes to B”, the life insurance will go to A.

In fact, if life insurance names a specific person to pay the proceeds, it does not matter if a will exists. Likewise, if real estate is owned with another person, the real estate may automatically transfer to the other person.

The laws for creating and carrying out the wishes of a will can be complex. If there are questions or confusion of how to do so, a person should meet with a qualified estate planning attorney.

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Andrew Lamkin is principal in the law firm of Andrew M. Lamkin, P.C., where he focuses his practice in the areas of elder law, estate planning and special needs planning, including Wills and Trusts, Medicaid planning, estate administration and residential real estate transactions. He is admitted to practice law in New York and New Jersey.

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