1. Introduction to Wills 

A will is a document you create to control who receives your property, who will be the guardian of your children and who will manage your estate upon your death.

The importance of a will cannot be overstated. A will is perhaps the most important legal document a person ever signs. Yet, over 70% of American adults do not have a will. Not enough time, can t afford an attorney, too busy to think about it - - are all common reasons why people do not prepare wills.

Services like LegalZoom.com that can easily and inexpensively help you create and process a will eliminate these reasons. Through an online process, you will be asked a series of simple questions in plain English. They will generate a legally binding will ready for you to sign that is valid in all states. You can create a will on your own time, without an attorney, and with the guidance you would expect from the premier online legal service center.

2. What happens Without a Will? 

If you die without a will (known as "intestate"), the state, and not you, will decide how your property is to be distributed. In many states, your property will be distributed as follows: first, all of your joint property will pass to your spouse (if you have one). Second, your separate property will pass according to these rules: 

If you have a spouse, your spouse receives:

  • All of your property if you leave no children, parents, siblings, nieces or nephews.
  • Half of your property if you leave one child or one or more parents, siblings, nieces or nephews.
  • One-third of your property if you leave two or more children.

All property not given to a spouse is distributed to the following persons in this order:

  • Your children 
  • Your parents
  • Your brothers and sisters or if they are not living, their children (i.e. your nieces and nephews)
  • Your grandparents or if they are not living, their children (i.e. your uncles and aunts) 
  • Children of your deceased spouse
  • Relatives of your deceased spouse 
  • The state of your legal residence

3. Definition of Probate

Probate is the legal proceeding in which a court determines how an estate will be divided. The court will follow your Last Will and Testament in distributing your property, unless it is contested by your heirs. 

Some people think having a will avoids probate. This is not the case. A will is used in probate to determine who receives what property, who is appointed guardian to any minor children and who will be responsible for carrying out the wishes contained in the will. 

If an estate includes real estate or minor children, a formal probate action in court is generally required. However, if the value of the estate does not exceed $50,000, probate is not mandatory in many states. 

Probate can be very expensive if you do not plan correctly. For instance, if you do not have a will, the court will need to appoint an administrator. This can take a long time and cost a significant sum of money. The court will often charge a hefty fee (sometimes 5-15% of the value of your property) to probate your estate. 

To avoid probate, other estate-planning devices should be used. Joint tenancies, pay-on-death accounts and living trusts are some of the most common estate planning methods.