What Does a Will Do?

Even though 70% of Americans don’t have a will, according to Caring.com, you probably should get one, especially if you have any savings/assets and have or plan to have any minor children.

If you die without a will, you’ll have died “intestate,” which means your loved ones will have to go through a complex, lengthy legal process known as “probate” without the guidance of your will. If you have a will, then your loved ones will be able to go through a probate process that will follow the directions laid out in your will.

Having a will allows the probate process to be simpler, faster and cleaner.

A “simple will” says who you wish to be: 

1) the guardian of your kids; and 

2) who gets your property after your death. 


If you do not have a will, this is what happens:

What happens to your stuff if you die without a will?

• Probate courts look to local “intestate succession” laws to decide who will receive your property
• Order of inheritance of your property typically follows succession, which usually prioritizes your surviving spouse or domestic partner, followed by your kids, then your parents, siblings and extended family
• Having a legal will gives you more control over who will receive your property after you die
• Your last will and testament: Lists your assets and beneficiaries for each asset
• Whatever assets you don’t name in your will become part of your “residuary estate,” which itself can also have a beneficiary or beneficiaries that you’ve named

Who takes care of your kids as the guardian if you die without a will?

• The surviving parent typically gets custody of minor children if one of the parents dies
• However, when the surviving parent has also died or is incapacitated, most courts and judges will consider the legal guardian that you’ve named in your will
• If there is no will, the courts will then ask your family members for volunteers to be your kids’ guardian
• From your family members that have volunteered, the courts will select whom to give custody of your children to - in theory, they will choose the guardian that is in your children’s best interest
• If none of your family members volunteer or are not suitable to be the guardian(s) of your children, your kids may enter foster care as wards of the state