Creating a will is one of those important tasks many of us know we should do, but it often gets delayed because it feels overwhelming or unnecessary. It’s also common to assume that wills are only for wealthy individuals. In reality, a will can be valuable for anyone who wants to protect their loved ones, provide clear instructions, and make sure their wishes are honored.
According to the Pew Research Center, most Americans do not have a will or living will until they are in their 70s. Yet major life events such as getting married, welcoming children, purchasing a home, or building financial security are often the moments when creating a will becomes especially important. As Mooresville wills lawyer Tiffany Webber explains, a will can serve as a foundational part of a broader estate plan and help ensure important decisions are handled according to your wishes.
Without a valid will, state intestacy laws determine how assets are distributed after death. While these laws follow established guidelines based on family relationships, they may not always align with what you would have wanted for your family. Understanding when to create a will can help you avoid unnecessary complications and give your loved ones greater clarity during a difficult time.
Let’s take a look at some of the most common situations when creating a will should become a priority.
What Happens Without a Will: Intestacy
When someone passes away without a valid will, state laws determine how their assets are distributed. While these rules are designed to provide a framework, they may not reflect the individual’s personal wishes or unique family circumstances.
When a valid will of the deceased is not present, each state applies its own intestacy rules. Such rules are based primarily on family relationships. Normally, intestacy laws prioritize the spouse and children of the deceased. If no blood relatives can be found, the estate may ultimately pass to the state.
Keep in mind that a spouse does not always automatically receive everything. In some states, if the deceased has children from a previous relationship, the estate may be divided between the surviving spouse and those children according to state law. A surviving spouse may receive less than many people expect.
Unmarried partners, regardless of how long they have been together, generally do not inherit under intestacy laws. Unless there is a legally recognized marriage or civil union, inheritance rights typically do not exist.
For example, someone who lived with a partner for twenty years but never created a will could unintentionally leave that partner with no inheritance rights at all. While beneficiary designations on insurance policies or retirement accounts may help in some situations, a simple will could prevent many of these complications: https://www.albaneselawllc.com/
Minor Children: The Guardianship Question
Parents of minor children have the biggest single reason to create a will, no matter what their age is, how healthy they feel, or how much they actually own. A will is the only document where a parent can name a guardian for their minor children. If that choice isn’t made, guardianship gets handled by a probate court, either in a contested or uncontested situation. The court uses a best interests standard without really knowing what the parents would have wanted or who they would have picked.
Probate courts will look at the nominee’s relationship to the children and how well they can keep things stable and provide care. If the children are old enough, the court may also take their preferences into account.
In the absence of parent nomination, the court is faced with the challenge of selecting a family member more suitable to take care of the child. They may choose a joint guardianship arrangement, which can be problematic. Circumstances may even arise in which the children are molded in ways that the parents find totally unacceptable.
A will significantly help determine the selection of guardians and the values that shape the upbringing of the children.
A guardian nominated in a will is not automatically approved. The court still has authority to appoint whoever it decides best serves the child’s best interests. Still, a nomination from a deceased parent is usually very persuasive evidence in a guardianship dispute. And unless there are truly extraordinary circumstances, courts tend to give substantial weight to a parent’s stated wishes about who should take care of their children.
Marriage: What It Does and Does Not Change
Marriage does not always just update an already existing will in most states. In states that have not adopted the omitted spouse doctrine, a will executed before marriage is still valid after marriage. If the testator marries after signing the will, the new spouse can contest it and receive a portion of the estate if they can prove they were accidentally omitted.
Most places do offer some sort of similar kind of protection, but the range of it can be significantly different. The omitted spouse protection may not apply if the deceased’s will explicitly addresses postmortem marriages or is so thorough that its content is beyond doubt.
To avoid the aforementioned issues, executing a new will is advised. A new will should specifically revoke all earlier wills, name the new spouse correctly in the distribution plan, and also cover guardianship issues if children are expected or already in the picture.
A prenuptial agreement can change what a spouse may receive at death. Any will made after marriage should be checked for consistency with the prenuptial agreement.
Divorce: Automatic Revocation and Its Limits
Most states automatically revoke the provisions in a will that would benefit a former spouse once the marriage is dissolved, either by divorce or similarly. Under the Uniform Probate Code and similar state statutes, divorce effectively treats the former spouse as if they had predeceased the testator for the purposes of any will language that would have benefited them. So if the will left everything to the former spouse, and there is no backup or contingent beneficiary named, the former spouse’s portion ends up going as if the testator died intestate.
This kind of automatic revocation usually applies to the will document itself, but it typically does not reach beneficiary designations on non-probate assets. Things like life insurance policies, retirement account beneficiaries, payable-on-death bank accounts, and transfer-on-death registrations are governed by unique processes.
A divorce doesn’t automatically change those designations. To illustrate clearly, if a former spouse is still listed as the beneficiary on a life insurance policy or a 401(k) account, they will still receive those assets no matter what the will says and regardless of divorce. This outcome is only true if the beneficiary designation is actually updated.
This type of situation often leads to unintentional wealth transfers following divorce. Every year, millions of dollars that should go to new spouses instead go to former spouses. Preventing this problem simply requires one to update all beneficiary designations on every insurance policy, financial account, and retirement account.
Significant Asset Acquisition: Why Net Worth Is Not the Only Threshold
It is a common misconception that wills are only for wealthy people. Legally, the reality works differently. The need for a will is not mostly decided by how much money there is but rather by who has interests the person wants preserved. So a young adult with little savings but who still wants to name a particular person to sort out their affairs has a reason to put a will in place.
Wills are also applicable when an individual has a domestic partner who would otherwise get nothing under intestacy. Will should be created by people who simply own any asset at all. Even having a modest bank account or a vehicle should warrant writing a will, especially if you want that item to end up with a specific person instead of wherever intestacy sends it.
When larger assets are involved, the will becomes the primary tool that prevents the state from deciding where those assets go, allowing the testator to direct them according to their priorities. Examples of such assets are real property, retirement savings, business interests, and investment accounts.
Real property is especially worth dealing with. Real estate held in the decedent’s name alone typically goes through the probate estate whether you’re using a will or intestacy. Meanwhile, real estate held in joint tenancy with the right of survivorship automatically passes to the surviving joint tenant. Failure to create a will can have heavy planning consequences for married couples, for parents who co-own property with children, or for business partners.
Formal Requirements for a Valid Will
A will must meet certain execution requirements to be legally valid. In most states, the testator must be at least 18 years old and of sound mind. The will needs to be in writing, signed by the testator, and witnessed by at least two people. The witnesses need to provide their signature and sign the document in the testator’s presence. To avoid a conflict of interest, the witnesses shouldn’t be beneficiaries of the will.
Holographic wills, also known as handwritten wills, the testator signs without witnesses. These wills are valid in roughly half the states. Electronic wills are being recognized in more and more states after newer legislation.
Oral wills are different. They only get treated as valid in pretty limited situations in a small number of states. The requirements of oral wills vary enough from state to state. You can end up with an invalid document, even when the testator’s intent seems clear, if wrong formalities were followed or missed in a subtle way.
Final Thoughts on When Should You Create a Will
Creating a will is not just about passing down wealth. It is about providing clarity, protecting the people you care about, and making sure important decisions are handled according to your wishes. Whether you are raising children, getting married, navigating a divorce, purchasing property, or simply want a say in how your assets are distributed, having a valid will can make a significant difference.
While many people put off this task, the best time to create a will is often before a major life change occurs. Taking the time to put your wishes in writing today can help spare your family unnecessary stress and uncertainty in the future. If you are unsure where to start, speaking with an estate planning professional can help you understand the options available and create a plan that fits your family’s needs.
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