A will is a written instrument that specifies how a person’s property is distributed when they die and names a personal representative (or executor) to carry out those instructions. If a will is valid according to the state where it is signed, it will be recognized as valid in the state where it is probated. Probate, which is simply the process by which a court oversees the lawful transfer of title to property according to the will, must take place in the state and county where the decedent resided when they died.
A will only governs property that a person owns in their own name and that does not have a designated beneficiary. In other words, jointly owned property passes to the surviving joint owner when the first joint owner dies, regardless of what the will says. Likewise, the designated beneficiary of a retirement account or life-insurance policy will receive the funds even if the will says otherwise. The same is true with corporate stock that is subject to a buy-sell agreement. Property governed by a will is generally referred to as “probate assets” and property not governed by a will as “non-probate assets.”
While there is a default law that provides what happens to probate assets if you die without a will (for example, for a married couple with more than one child, 1/3 goes to the spouse and 2/3 is divided among the children), most people are better off having a will.
Wills are necessary to transfer ownership of probate assets if you want to do that differently than the default law; make specific gifts to individuals or charities; nominate a guardian for minor children; or transfer property to trusts that wasn’t placed in one during your life.
Be very careful about using free or inexpensive online forms. There is no substitute for personal advice from an experienced professional, and there is always a risk that you will omit something important. For example, wills in Indiana must be witnessed (not notarized) by two “disinterested” persons. That means a will’s beneficiary is ineligible as a witness.
Jones Obenchain’s lawyers have been drafting wills for decades. If you have a question about a will, call us.