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Consumer law: What is a will and why should you make it? Is it costly?

Are you keen on ensuring that all your prized assets are placed in a safe custody after your death? Is your keenness coupled with the concern for your child's security? If that is what you are looking for, preparing a will and trust could ensure that your child doesn't get deprived of his/her rights in your absence.

You can use our services to create wills.

Once you die, your estate assets will be used to pay off your debts. A will allows you to state what happens to the rest of your assets by naming specific bequests, and stating how the residuary estate will be divided.

Table of contents

What is a will?

A will is a legal declaration of what the owner wants to do with his property after his death. The owner of a property assigns one or more than one person to supervise his estate and only after the death of the testator, the property is transferred to the assigned person according to the terms of the will. The testator has got all the authority to revoke the will and change the name of the beneficiary any time prior to his death.

Why do you need a will?

According to the intestacy law, if you die without a will, the government would take up responsibility to distribute your assets among your children. The law might distribute the property according to your desires but chances are there that your wish would remain unfulfilled.

Following problems you might face if you do not have a will:

  • As the property gets distributed among your children one can not specify what the others can get.
  • This can lead to many serious issues as there might be a dispute among the children if they are dissatisfied by the division of the property by the state.
  • There might be an arguments among themselves regarding certain items of your personal property; one of them would not like to give away a specified item to his sibling.

A will would helpful in such a situation. Even after your death you can give your children what you always thought of presenting them. This would help in the process of peaceful distribution of your property among the heirs.

You can consider a 'no-contest clause' or 'interrorem clause' if you want to divide your property unevenly amongst your heirs. You can also consider this if you decide to give more or less to your spouse than what he/she is supposed to receive as an heir. In California, under Sections 21310-21315 of the Probate Code, these rules are irrevocable from January 1, 2001.

“Section 21310 of the Probate Code recognizes three types of contests that can be the subject of a “no-contest” clause: (1) a direct contest that is brought without probable cause; (2) a pleading to challenge a transfer of property on the grounds that it was not the transferor’s property at the time of the transfer; and (3) the filing of a creditor’s claim or prosecution of an action based on it.” [Source]

Are wills public record?

The wills become a public record after the death of the testator. Usually, the court comes into the picture after a will enters the probate process. Wills need to be filed with the court during the probate process and it’s during this time interested parties come to know about them.

What is a personal representative in a will?

The personal representative is the person appointed in the will to handle testator’s estate. The key responsibilities of a personal representative are:

  • Taking out the debt certificate of the deceased person
  • Obtaining the will
  • Checking out the names of the beneficiaries
  • Informing the concerned parties about the will
  • Finding out the probate assets
  • Completing the probate process

How do I contest a will?

You can contest a will by filing a lawsuit to invalidate it. Here are the few steps to contest a will.

  • Determine if you have valid reasons to contest a will
  • Determine if you’re the beneficiary or a fiduciary named in the will
  • Find out if you have time to contest a will

Reasons to contest a will

  • You feel that the will has not been executed properly
  • You feel that the testator signed the will without realizing that it was a will
  • You feel that the testator signed the will under force or undue influence
  • You feel that the testator didn’t write the will in stable mind

Where should I store my will?

The most important task you need to do after creating a will is to store it in a secure place. The safest option will be to let your attorney keep the original copy of your will. The attorney will keep your will in a safe place without charging any fee.

How long is a will valid?

A will is valid until you cancel or revoke it by shredding or burning or tearing it. You need to make a new will that revokes your previous will and totally disposes of your state.

Can I change my will?

Usually, people change or update will under the following circumstances - marriage, a new baby, divorce, change of mind, new assets, new step-children, etc. You can change your will in the following ways:

  1. Make a new will
  2. Add a codicil to amend your will

What are the different types of wills?

Wills are of different types and these are: simple wills, joint wills, testamentary wills, living wills, oral wills, handwritten wills, etc.

What is the difference between a living will and a last will?

A living will (also known as an advance directive)consists of instructions that need to be followed in case of medical emergency. The instructions state the kind of medical treatment the person wants to receive. On the other hand, the last will decides property division amongst the beneficiaries. The last will becomes effective after the death of the will maker or the testator.

Do all wills go through probate?

The state laws, the kind of property you have and the type of ownership determine if your will needs to go through probate. Sometimes, it is possible to avoid the probate process and save legal fees with clever planning.

Do wills expire?

A will doesn’t expire. A will doesn’t expire if it has been properly executed and never been revoked.

Are homemade wills legal?

A homemade will or a self-made will is legal as long as it fulfills the state’s requirements. You can type your will on a computer or write your will with a pen. Just make sure you don’t make errors and follow all the rules. For instance, you should write a will in a stable mind, you must know the reasons for making a will, you should sign the will in front of 2-3 witnesses, etc.

Do wills need to be notarized?

There is no law that requires wills to be notarized. A will just needs to be legally executed to be valid. A will needs to be notarized when you want the witnesses to sign an optional “self-proving affidavit”.

Are online wills legal or valid?

Online wills are legal and quite popular nowadays since they are less expensive. You can easily use “do it yourself wills and trusts” but this is not recommended. If you make one mistake, your family will suffer. You won’t be there to rectify your mistake. This is why it is best to consult an attorney to make a will or an estate plan.

Are video wills legal?

It is tough to say if video wills are legal since most legislation is silent on the issue. Video wills or nuncupative wills are accepted in 11 states like New York, Missouri, Vermont, Kansas, Ohio, Florida, Texas, North Carolina, Indiana, Mississippi, and Tennessee.

Video wills or deathbed are valid in Washington too but only if they are from the members of US army.

Are wills state specific?

Wills are state specific documents. Each state has its own set of rules. So, if you’re relocating to another state, then it’s best to get your will reviewed by an attorney once.

What is the cost of wills?

The cost of wills depends upon the way you decide to make your will. You can download free templates and prepare a will without paying a penny. Or, you can consult an attorney to prepare a will as per your specification. Usually, it costs between $150 and $600 to make a will. The average cost is around $375. The attorney may charge you at an hourly rate if any complications arise.

Do you need a Power of Attorney and associated estate planning documents with your will? If so, then be prepared to pay between $1000 and $1500 to the attorney.

Why do you need an attorney guidance while making a will?

An attorney's advice would be good, who practices in the arena of wills and trust. He would help you according to your need and would structure a plan which suits you best.

Probable conditions when you want to talk to the lawyer:

  • The lawyer can provide you with other alternatives and would quench your thirst regarding any queries related to wills. A professional guidance would show you the right path and provide you with correct information.
  • If you know that you are going to leave a very large amount of assets you might be subjected to estate tax. An attorney would help you to evade a partial amount of tax submission legally.
  • If you don't want to name the next successor of your property rather want make a trust. Then such complex issues are best dealt by an attorney.
  • If you have a question regarding ownership share in case of a small business group.
  • You must make arrangements for long-term care of a beneficiary -- for example, setting up a trust for an incapacitated or disadvantaged child.
  • If you have an attorney while making your will then there would be less fear of contesting your will on grounds of fraudulence. A witness of the lawyer would deliver you out of this problem.
  • If you wish to disinherit someone from your property and transfer the succession to someone else then an attorney can show you the correct legal procedure.

You would feel more confident if a lawyer reviews your will, if you have any legal complications then he will be able to tackle it.

Where can you find attorneys for wills and trusts?

An attorney can explain your estate planning options and draft your last will. You can find reliable attorneys in OVLG who can help you complete all the legal formalities without any problem.

What is the basic difference between wills and trusts?

A Will comes into effect after the death of the testator. It states who will receive the testator's property after his/her death. It will also appoint a person who will be responsible for carrying out the testator’s wishes.

A Trust comes into effect as soon as it has been created. The biggest benefit of a Trust is that it can be used to distribute property before, after and at the time of death.

Let’s look at the brief synopsis on the difference between Wills and Trusts here.

Wills Trust
It is a legal document that instructs who will inherit your property after your death. It is a legal document that instructs how your property will be distributed before or after your death.
A legal representative is appointed to carry out your last wish. A Trustee has been appointed who will hold the legal title of the said property for the beneficiary. This Trustee can be an individual person, a law firm or a bank.
It covers all the properties that are in your name only. It covers all the properties that have been put in the name of the Trust.
It will go through a probate where the court verifies the validity of the Will and ensures its proper execution. You don't have to go through a probate. The court is not involved.
It becomes a public record. It’s private and confidential.
It allows you to appoint a guardian of your children and make your funeral arrangements. It doesn’t allow you to do any such thing.
It can’t be used to save tax or plan for something like disability. It can be used to save estate tax and make arrangements for disability.
It’s a time consuming process. It’s a cost-effective process. It helps you to save both time and money because there is no need to go through a probate.
It comes into effect after your death. It comes into effect after the assets are transferred to the Trust.
It can be revoked before your demise. The revocation depends on the type of Trust that has been created. In case of revocable trust, it’s possible to revoke or modify it without the consent of the beneficiaries. An irrevocable Trust can’t be revoked once it’s executed.

There is one big difference between Wills and Trusts. There is no creditor’s protection when it comes to inheritance in a Will. Suppose you have selected your son as your beneficiary. So, he will inherit all your properties and money after your demise. But what if he is going through a nasty divorce? What if he has a huge credit card debt on his shoulder? What if he had filed for bankruptcy?

Well, in case of bankruptcy, he won’t be able to enjoy all the inherited properties and money. The court will use them to pay off his debts. Even if he doesn’t file bankruptcy, your son (the beneficiary) may have to use the inherited money to pay back his creditors. In case of divorce, he may lose half of the properties to his spouse.

However, in the case of a Trust, there is creditor protection for the inherited property. The grantor can keep all the assets and properties out of the reach of the beneficiary. All assets remain in the Trust. They are not in the name of the beneficiary.

The beneficiary can access funds and assets from the Trust. The beneficiary can use the assets as per the direction of the Trust. You can appoint the beneficiary as your Trustee. So, he can manage his own inheritance. This implies that if you use a Trust as a medium to distribute assets among your children instead of a Will, then they can enjoy them. The funds and assets won’t go into the hands of creditors.

Several married couples leave all their assets to their surviving spouse through a Will. If the total worth of the estate is above $1,000,000, then a huge amount of money will go to the government in the form of estate tax. However, if the same money is transferred to the beneficiary via Trust, it may help to reduce tax. But even in a trust, someone has to pay tax. Who will pay for it? The grantor or the beneficiary? Find out here.

What are the myths associated with a will?

You might harbor certain misconceptions regarding a will. A layman like you might think that your heir has to go through a probate if you have a will, which would be too expensive to handle.

Even if you die without a will, the court is going to distribute your asset. Going through a court procedure won't be less expensive nor easy. In other words the court process won't be less troublesome than making a will.

The administrators of your estate have to post a surety bond if you don't have a will. If you possess a will, then you have an option to choose an estate administer.

A will can do justice for your minor children: United States Intestacy Law

If you have minor children, just in order to secure their future a will is required. In case you don't have a will, then the probate court, in order to secure the share of the property for your children, would set up a conservator ship. After the children attain the age of 18, they would get back their property. The court won't be bothered whether or not they would be able to handle it.

If you have a will, then you would know the right age for your children to pass down the property. Till then, you can keep a caretaker for the inheritance on their behalf according to your will.


  • Testator - a person who makes the will
  • Beneficiary - A person or entity named in a will or financial contract as the inheritor of property when the property owner dies.
  • Intestacy - When a person dies without a will, the government will assume responsibility and determine the method by which assets will be divided.
  • Probates - The legal process in which a will is reviewed to determine whether it is valid and authentic. Probate also refers to the general administering of a deceased person's will or the estate of a deceased person without a will.

Last Updated on: Sun, 20 Sep 2020