It’s often not easy to think about matters such as making a will, trust, or advance directive. However, anyone of any age may benefit from drafting these documents to ensure that their wishes are honored should adversity strike. Most people, and especially those with complex assets or distinctive family dynamics, will benefit from consulting an attorney about their plans. Meanwhile, the Estate Planning Legal Center in the Justia Legal Guides offers an overview for people who want to get a sense of the main issues in this area of law and start considering their options. Below are common questions to which it provides some basic answers.

Why Should I Make a Will?

If a person passes away without making a will, they will not be able to control how their property is distributed. The intestate succession laws in their state will decide what happens. These rules generally prioritize spouses and children, followed by other relatives in a fixed hierarchy. Intestate succession may not mirror the wishes of some people. For example, someone who is closer to a sibling than a parent might not want the parent to have priority.

What Are the Requirements for Making a Will?

In most states, the testator (the person making the will) must be 18 or older and “of sound mind,” or mentally competent. The testator must sign the will, and their signature or acknowledgment usually must be witnessed by at least two other people. If the testator and the witnesses sign an affidavit before a notary public, the witnesses will not need to testify about the validity of the will when probate begins. Justia provides a 50-state survey on the formalities for creating a will, which also includes useful forms and resources.

How Can I Change a Will?

You can change a will by creating an instrument called a codicil. This must meet the same requirements as the original will. However, adding a codicil may create unnecessary complexity and confusion. A testator instead may want to draft a new will. They would need to state that this will revokes all previous wills and codicils. Some common situations in which a testator may want to change a will include remarriage, the birth of a child, the acquisition or loss of substantial property, or the death of a beneficiary in the existing will.

How Do I Challenge a Will?

A person contesting a will might argue that the testator lacked capacity to make the will or that it was improperly executed. In other cases, the challenger might claim that undue influence affected the will. This means that someone took advantage of the testator and caused them to draft a will or a provision in a will that did not reflect what they would have wanted. A similar claim to undue influence is fraud, which might involve forging a signature on a will or deceiving the testator about the nature of the document, among other forms of misconduct.

How Can I Avoid Probate?

Many people want to avoid the lengthy, expensive process of probate, which can place a burden on their loved ones. The main strategy for avoiding probate involves creating a living trust for their property. They also might consider making gifts during their lifetime. Pay-on-death bank accounts (Totten trusts) can allow for the efficient transfer of money, while transfer-on-death accounts and deeds can ease the transfer of securities and real estate in the majority of states. Holding property in joint tenancy allows an owner’s interest to transfer to the other owners automatically. These are just some examples of ways to avoid or streamline probate.

Even if some property must go through probate, estates below a certain size may qualify for simplified procedures. Justia provides a 50-state survey on laws and procedures for small estates.

How Does a Trust Work?

A person (known as a “settlor” or “grantor”) can make a trust by transferring certain assets to a trustee. This person or entity manages the property and makes distributions to the beneficiaries chosen by the settlor. The trustee owes fiduciary duties to the beneficiaries, such as a duty of loyalty and a duty of prudence. This means that they must administer the trust in the interest of the beneficiaries, and they must take care in managing its assets.

What Is the Difference Between Living Trusts and Testamentary Trusts?

A living trust (also known as an inter vivos trust) takes effect while the settlor is alive. The trust may be revocable, which means that the settlor can change or cancel it whenever they choose. Or it may be irrevocable, which means that the trustee takes full control over its assets. On the other hand, a testamentary trust arises from a will, so it does not take effect until the settlor dies. As with a revocable living trust, they can change or cancel the trust at any point. However, a key difference between living trusts and testamentary trusts is that living trusts avoid probate, while testamentary trusts do not.

What Are the Benefits of a Special Needs Trust?

A special needs trust benefits a person with a disability. Since the trustee controls the assets in the trust, the person with a disability will remain eligible for government benefits that are available to people with assets below a certain ceiling. These may include Supplemental Security Income, Medicaid, and food stamps. The trustee cannot give the funds in a special needs trust to the person with a disability, but they can use the funds to pay for items or services that benefit this person.

What Does an Advance Directive Do?

One common type of advance directive, a living will, records a person’s wishes regarding medical care in case they cannot communicate them. It can outline the treatment that they would prefer to receive or not receive. Another common instrument is a healthcare power of attorney. This designates a person, often called a healthcare agent, to make medical decisions when the drafter of the power of attorney is incapacitated. Justia provides a 50-state survey on the laws governing advance directives, as well as useful forms and resources.

How Do I Make a Financial Power of Attorney Durable?

A financial power of attorney that is durable stays in effect if the drafter becomes incapacitated. Some states presume that a financial power of attorney is durable, while others require the instrument to contain certain statutorily specified language if the drafter wants to make it durable. Justia provides a 50-state survey on the laws governing financial powers of attorney, including whether durability is presumed.

Will My Estate Need To Pay Tax?

The federal estate tax applies only to very large estates. For example, the exemption for 2024 is $13.61 million, which means that estates below that amount do not need to pay tax. Some states impose estate taxes or inheritance taxes on smaller estates, though. To avoid tax concerns, many people transfer assets into a trust, which means that they are excluded from the estate.

What Can a Guardian Do for an Elderly Person?

The scope of a guardian’s authority depends on whether they are a guardian of the person, a guardian of the estate, or both. In a guardianship of the person, the guardian manages matters such as medical care and end-of-life concerns. In a guardianship of the estate, the guardian oversees the property of the ward. Either type of guardianship may continue indefinitely, unless a court finds that the ward no longer needs a guardian. Justia provides a 50-state survey on the laws governing guardianships, which also includes useful forms and resources.

Final Thoughts

Each person’s needs and preferences are unique, and the stakes in devising an estate plan are high. Thus, someone who is ready to take this step should ideally consult an estate planning lawyer for guidance tailored to their situation. In the meantime, the Estate Planning Legal Center in the Justia Legal Guides addresses some of the issues that may arise in this sensitive area. It furthers Justia’s mission of making the law free and accessible for all.