Wills explained — what they do and what they don't do

This article is for educational purposes only and does not constitute medical, legal, or financial advice. Every family situation is different, and you should consult with appropriate professionals about your specific circumstances.

Your mother died. She left a will. You assumed her estate would be straightforward to settle. She had a house, some money, a few items of sentimental value. The will said everything went to you. Sounds simple. But it turned out to be much more complicated. The house went through probate. It took months. There were court fees and attorney fees. There was a mortgage that had to be dealt with. The probate court had specific rules about how things had to be handled. Your mother's will directed where her property went, but it didn't actually make the process of transferring that property simple or fast.

This is how wills actually work. A will is a document that directs where your parent's property goes after death. It's important. It's useful. But it doesn't do everything people assume it does. A will doesn't avoid probate. A will doesn't prevent legal complications. A will doesn't settle an estate quickly or cheaply. A will does one thing. It tells the court and your family where your parent wants their property to go after they die.

Understanding what a will actually does and what it doesn't do helps you understand whether a will is sufficient for your parent's planning or whether other documents might also be needed. Many families need more than just a will.

Understanding the Basics

A will is a legal document that your parent creates while they have capacity. The will says what should happen to your parent's property after they die. The will says who should inherit. It might say that specific items go to specific people. It might say that everything goes to one person, or it might divide things among several people. The will also names an executor, which is the person responsible for managing the estate and following the directions in the will.

A will only takes effect after death. While your parent is living, the will has no legal force. Your parent can change their will anytime. Your parent can completely rewrite it. Your parent can destroy it. A will is just a piece of paper until your parent dies. When your parent dies, the will becomes operative and the property transfer process begins.

The will has to go through probate to be effective. Probate is the court process where the will is validated, the executor is appointed, the estate is managed according to the will's directions, and property is distributed to the people the will names. Probate is a court process, which means it's official, which is good, but it's also time-consuming and involves court fees and attorney fees.

The will needs to meet your state's legal requirements to be valid. It needs to be signed. It probably needs to be witnessed. It might need to be notarized. The specific requirements depend on your state. If a will doesn't meet your state's requirements, it might not be valid, which means a court can't follow it.

A will doesn't cover everything a person owns. Some property is governed by beneficiary designations, which override the will. If your parent has a life insurance policy that names a specific beneficiary, the life insurance proceeds go to that beneficiary. The will can't change that. If your parent has a bank account that's set up as "payable on death" to someone, the money goes to that person. The will can't change that.

A will also doesn't avoid probate. A will actually requires probate. If your parent dies with a will, the will goes to probate. The court validates the will. The executor follows the will's directions. The property is distributed. This process takes months and costs money. If your parent wanted to avoid probate, there are other ways to do it, but a will by itself doesn't accomplish that.

What a Will Does

A will tells the court and your family where your parent wants the property to go. If your parent has decided certain things go to certain people, the will documents that decision. After your parent dies, the will tells the executor what to do. This is valuable. Without a will, state law determines where the property goes, which might not be what your parent wanted.

A will names an executor. The executor is responsible for collecting your parent's assets, paying bills and taxes, and distributing property according to the will. This is an important role. The will specifies who should do this job. If there's no will, the court appoints an executor, which might or might not be someone your parent would have wanted.

A will might contain other directives. Your parent might use the will to explain why they made certain decisions. Your parent might use the will to address sensitive topics. Your parent might use the will to give specific instructions about specific items. The will is the vehicle for communicating your parent's wishes about how the estate should be handled.

A will gives the court authority to enforce your parent's property distribution wishes. Without a will, the court has to follow state law. With a will, the court enforces your parent's directions.

What a Will Doesn't Do

A will doesn't take effect until death. If your parent becomes incapacitated, the will doesn't help. If your parent has a stroke and can't manage their affairs, the will doesn't give anyone authority to make decisions or manage property. This is why a power of attorney is separate and important. A power of attorney helps while your parent is living. A will helps after your parent dies.

A will doesn't avoid probate. If your parent dies with a will, the estate still goes through probate. Probate is mandatory for property directed by a will. There are ways to avoid probate, but having a will isn't one of them.

A will doesn't avoid estate taxes, though it might be part of a tax-planning strategy. A will doesn't save money on the cost of settling an estate. If anything, probate adds costs because of court fees and attorney fees.

A will doesn't handle property that's governed by beneficiary designations. If your parent has a life insurance policy, the proceeds go to the named beneficiary, not to whoever the will says. If your parent has a retirement account, it goes to the named beneficiary. If your parent has a bank account with a payable-on-death designation, that money goes to the named person. Updating beneficiary designations is separate from the will.

A will doesn't provide for your parent's care if your parent becomes incapacitated. If your parent has a stroke and can't make medical decisions, the will doesn't address that. Healthcare and financial powers of attorney address that. The will doesn't help.

A will doesn't become effective until probate is complete. If your parent dies and leaves a house to you, you don't immediately own the house. The house goes through probate. Once probate is done, the house is transferred to you. Until then, you don't have the legal authority to sell it or deal with it.

Your Parent's Specific Situation

Your parent should have a will. This is basic. Every adult should have a will. A will is relatively inexpensive to create. A will gives your parent control over what happens to their property after they die. Without a will, state law decides.

Your parent should think about who should inherit. Does your parent have children? Should they inherit equally? Should they inherit at all? Does your parent have a partner or spouse? Should they inherit? Are there grandchildren? Does your parent want specific items to go to specific people?

Your parent should name an executor. Who should be responsible for managing the estate? This is usually a family member, but it could be an attorney, an accountant, or a professional fiduciary. The executor needs to be someone your parent trusts and someone who's willing to do the job.

But your parent probably needs more than just a will. If your parent has any assets of significant value, a trust might make sense. A trust can avoid probate, which saves money and time. If your parent's situation is complex, with multiple properties or complex family situation, a trust might be helpful. If your parent wants to protect assets for beneficiaries who can't manage money, a trust provides that protection.

Your parent should definitely have a power of attorney for finances and healthcare. These documents help while your parent is living. The will only helps after your parent dies. These documents work together, but they serve different purposes.

Taking Next Steps

If your parent doesn't have a will, getting one created should be a priority. The will is basic estate planning that all adults need.

Meet with an attorney who practices estate law. The attorney can discuss your parent's situation and help your parent decide what a will should say. The attorney can create the will and make sure it complies with your state's requirements.

If your parent already has a will, ask when it was created. Is it current? Have things changed since it was created? If it's been many years, an update might be necessary.

Review who's named as executor in the will. Is that person still willing to do the job? Are they still able to do the job? If the named executor has died or moved far away or is no longer trusted, the will should be updated.

Review who's named as beneficiaries. Is this still who your parent wants to inherit? Have children been born? Has family situation changed? If so, the will might need to be updated.

Think about whether your parent needs more than a will. Does your parent have significant assets? Is there a possibility of probate complications? Would avoiding probate save money? Does your parent want to protect assets for beneficiaries? These questions help determine whether a trust would be helpful in addition to the will.

A will is important. It's a basic piece of estate planning that documents your parent's wishes about where property should go. But it's usually not the complete solution. Combining a will with other planning tools like a trust, powers of attorney, and beneficiary designations creates more comprehensive planning.

How To Help Your Elders is an educational resource. We do not provide medical, legal, or financial advice. The information in this article is general in nature and may not apply to your specific situation. If you are concerned about a loved one's cognitive health or safety, consult with their healthcare provider or contact your local Area Agency on Aging for guidance and support.