FREQUENTLY ASKED QUESTIONS:
Wills
Do I need an attorney or notary to make a will?
No, you can draft a will yourself. That being said, keep in mind that a poorly drafted will may not be enforceable and may leave ambiguities that invite litigation.
Can I simply hand write my will like they do in the movies?
Some states, including New Jersey, accept handwritten wills, called holographs. New York only accepts holographs from members of the armed forces during an armed conflict. Where permitted, a holograph is better than no will at all, but it may be difficult to verify.
I am still legally married but estranged from my spouse. Can I disinherit my spouse using a will?
Generally, no. Depending on the jurisdiction, the spouse may be entitled to an elective or forced share and set the will aside. Community property states – states that have a land border with Mexico, as well as, Idaho, Louisiana, Nevada, Washington, and Wisconsin – won’t allow a will to dispose of the spouse’s community property.
I am divorced and have children from the marriage. I want my kids to inherit my property but want to make sure my ex receives nothing. Can a will do that?
A will can help in some circumstances, but generally cannot prevent your children from giving their inherited property to the other parent. The other parent may also inherit property from their child if the child passes away first. A trust may help in this situation. You may also want to consider Payment on Death Accounts.
I remarried and have a child from a prior marriage. I want my spouse to inherit my property and then my child. Can a will do that?
Some jurisdictions, including New York, offer joint wills, or mutual wills, which a married couple executes together. The surviving spouse is bound by the joint will and cannot change it. Glass v. Battista, 43 N.Y.2d 620, 374 N.E.2d 116 (1978). However, this leaves the surviving spouse in a situation where they are unable to make a new will. For younger partners where the surviving spouse might remarry and have more children, a joint will might be too inflexible.