What is a will, what does it affect and why do I need one?

A will is a legal document in which you specify your wishes regarding the distribution of property and custody of minor children. If you die without a will, these wishes may not be honored. In addition, your heirs may spend additional time, money and emotional energy settling your affairs after you are gone. While no single document is likely to resolve all the issues that arise after your death, a will - formally known as a last will and testament - can come close to that goal. Here's what you should know about these important documents.

Main findings:

• A will is a document that contains your direct wishes regarding your property and assets, as well as the guardianship of your dependents.
• The absence of a will usually means that decisions about your inheritance are made by judges or government officials, which can cause family discord.
• You can make a valid will yourself, but you should request witnesses to reduce the likelihood of successful challenges in the future.
• To be absolutely sure that everything is in order, consider having a will drafted by a trust and probate lawyer.

Why you should have a will

Some people think that only the very rich or those with complex assets need wills. However, there are many good reasons to have a will. You can clearly state who will receive your property. You can decide who gets how much and who gets how much. You can avoid having your property fall into the hands of people you don't want to give it to (such as a foreclosed relative). You can determine who will care for your child. Without a will, the courts will decide. Your heirs will have quick and convenient access to your estate. You can schedule a tax abatement for your legacy.

A written will, witnessed by witnesses, is most preferable

To increase the likelihood of your wishes being carried out, create what is known as a testamentary bequest. This is the most familiar type of will; you draft the document and sign it in the presence of witnesses. This is by far the best defense against family members or business associates successfully challenging your wishes after your death. You can write a will on your own, but enlisting the help of a lawyer who specializes in trust and probate law will ensure accurate wording according to the laws of your state.

Other types of probate wills

While a testamentary bequest is probably the best option, there are other types of wills that are recognized to varying degrees. This includes holographic wills that are written and signed by the testator without witnesses. Holographic wills are recognized in only half of the states, and their validity must be supported, for example, by proof that the testator wrote it himself and had the capacity to do so. Usually, the absence of witnesses often leads to a challenge to the validity of the will.

The least recognized wills are oral wills, in which the testator communicates his or her wishes in front of witnesses. Due to the lack of a written document, or at least a document drafted by the testator himself, courts do not widely recognize oral wills.

Another type of will is the so-called "pour-over" will, which is used in conjunction with the creation of a trust. Mutual wills are usually made by a married or committed couple. Upon the death of one party, the other party is bound by the terms of the mutual will. Mutual wills can be used to ensure that property goes to the deceased's children and not to the new spouse. Because of differences in each state's contract law, a reciprocal will should be coordinated with an attorney.