Wills and trusts

What a will decides

• Who receives the assets that have no other instruction attached to them.
• Who administers the estate — the executor, or personal representative.
• Who is nominated as guardian for minor children, which is the one thing no other document does.
• Whether the executor must post a bond, and how much discretion they hold.
• What happens if a beneficiary dies first, which is the clause most home-made wills omit.

That last item is worth more attention than it gets. A will that leaves everything to two children and says nothing about what happens if one of them dies first hands the question to a statute, and the statute's answer is often not the one the family would have chosen.

What a will has no power over

A will directs the probate estate. Anything that already carries its own instruction passes under that instruction, and the will is simply not consulted.

• Retirement accounts and pensions with a named beneficiary. The plan pays the named person, and federal law requires the administrator to follow the plan documents.
• Life insurance, which is a contract with a named beneficiary.
• Payable-on-death and transfer-on-death accounts.
• Property held in joint tenancy with a right of survivorship.
• Anything already transferred into a funded trust.^{Source 5}

How much of an estate moves outside the will depends entirely on how its assets are held — for some households it is most of it, and for others almost none. A carefully drafted will paired with a twenty-year-old beneficiary form is a frequent planning failure, and where the designation is valid the will does not reach the asset.

A will also cannot impose conditions courts will not enforce, and cannot give away property the testator does not own. The largest instance of that second limit is the surviving spouse, and the four states split in a way the phrase "elective share" obscures — two of them protect the spouse by ownership, and two by letting them claim against the will.

And one the form does not freely give you either

People who understand that a beneficiary designation can control an asset outside the will often conclude that the form is therefore theirs to direct. On an employer retirement plan and you are married, it is not. Federal law makes the surviving spouse the default: an ordinary workplace account escapes the survivor-annuity machinery only by providing that the death benefit goes to the surviving spouse unless that spouse consents, so both routes arrive at the same place.^{Source 27}

The consent is formal and it is not a conversation. The plan must provide that the waiver does not take effect unless the spouse consents in writing, the election names a beneficiary that cannot be changed without further spousal consent, and the spouse's consent acknowledges its effect and is witnessed by a plan representative or a notary public. A married person who writes their children on the 401(k) form and stops there has usually not achieved what they intended — and nothing in the form says so.^{Source 27}

This is an employer-plan rule. An ordinary individual retirement account is excluded by regulation from that definition, provided the employer contributes nothing and does no more than run payroll deductions, so an IRA does not carry the same consent requirement. A household holding both will get different answers about the same intention.^{Source 28}

What a spouse can claim, and why it differs so much

Arizona and California are community-property states. Half the community property already belongs to the surviving spouse and was never the deceased spouse's to leave — California's statute says so in terms, and Arizona's intestacy provision speaks of "the one-half of community property that belongs to the decedent". A will there reaches the testator's separate property and the testator's half, and no more. There is nothing to elect against because the protection happened at acquisition, not at death. A disinheritance clause aimed at a spouse in these states may be operating on a much smaller pool than the person writing it imagines.^{Source 39Source 40}

Florida and New York do it the other way, by letting the spouse claim a share against the will's terms. Florida's elective share is 30 per cent of the elective estate, and electing it does not cost the spouse what the will already gave them. New York's is the greater of fifty thousand dollars or one third of the net estate, reduced by what passes to the spouse absolutely. In both, the base is defined to reach beyond the probate estate.^{Source 36Source 37Source 38}

The avoidance strategy people reach for does not work in New York. Testamentary substitutes — joint accounts, certain payable-on-death arrangements and other non-probate transfers — are brought into the computation, so routing assets around the will does not by itself reduce the claim. Where the deposit was partly funded by someone else, it is the surviving spouse who must establish the proportion the decedent contributed.^{Source 38}

Sahvelo has read the community-property provisions in Arizona and California and has not established whether either state also provides an elective share of the Florida or New York kind. Where a plan depends on limiting what a spouse receives, that is a question for a lawyer in those two states rather than an assumption either way.^{Source 39Source 40}

Whether you need a trust

A revocable living trust is a container you transfer assets into during your lifetime and continue to control. Its central advantage is that what the trust owns does not go through probate, which can mean privacy, speed, and an easier administration across state lines.

Where a trust genuinely earns its cost

• Real property in more than one state, which otherwise means a probate in each.
• A wish for privacy, since a probated will becomes a public record and a trust generally does not.
• A beneficiary who should not receive a lump sum — a minor, someone with a disability whose benefits are means-tested, someone with an addiction or a creditor problem.
• A blended family, where the tension between providing for a spouse and preserving an inheritance for children needs structure rather than trust.
• Planning for incapacity, since a funded trust with a successor trustee keeps assets managed without a court.

Where it usually does not

A modest estate in one state, held mostly in accounts that already carry beneficiary designations, with adult children who get along, is the case where a trust adds cost and administrative work for very little return. It is also, on the evidence Sahvelo has read, the case most often sold one.

An unfunded trust does nothing. A trust holds what is actually transferred into it — deeds re-recorded, accounts retitled — and paying for a document that is never funded buys the cost of the trust and none of its effect. Ask what funding is included before you sign anything.

A trust does not remove the need for a will. Anything left outside the trust still needs a destination, which is why a trust is normally paired with a short will that sweeps the remainder into it.

Getting the execution right

Execution is where home-made wills fail, and the failure is discovered at the worst possible moment: when the person who could have fixed it is dead. The requirements are not intuitive and they are not the same everywhere — see the table below for the four states Sahvelo has verified.

Practical rules that hold in all four

• Use witnesses who inherit nothing under the will. An interested witness raises a question that a disinterested one never does.
• Sign one original, in ink, and do not sign copies. Multiple signed originals create a problem about which is operative.
• Do not staple, unstaple, annotate or correct the executed document afterwards. A pen change after signing can invalidate more than the change.
• Tell the executor where the original is, and do not put it in a safe-deposit box that nobody else can open.
• Consider a self-proving affidavit if the state offers one, which spares the witnesses being tracked down years later.

Who may witness, and the mistake that costs the gift

A frequent self-help mistake is not a missing signature. It is asking the two people who happen to be in the house — usually the people who inherit — to sign as witnesses. What that costs depends entirely on the state, and the states Sahvelo has read give genuinely different answers to the same act — from nothing at all to losing the gift outright.

• Florida: nothing. A will is not invalid because an interested witness signed it, and the gift is untouched.
• California: the will stands, but a gift to a subscribing witness raises a presumption that the witness procured it by duress, menace, fraud or undue influence — unless two other disinterested witnesses also signed. If the witness cannot rebut it, they keep no more than they would have taken with no will at all.
• New York: the gift is void unless two other attesting witnesses signed who take nothing. Since New York requires two witnesses in the ordinary case, a will witnessed by exactly two people, one of whom inherits, destroys that person's gift.
• Arizona: the strictest on who may sign, and it reaches further than the beneficiary. Since 1 October 2019 a beneficiary — or anyone related to one by blood, marriage or adoption — may not act as a witness at all, unless the will is made self-proved.
• Michigan: nothing, by design. The statute says an interested witness does not invalidate the will or any provision of it, so the rule is abolished rather than softened.
• North Carolina: the harshest outcome of any state here. Unless two other disinterested witnesses signed, the witness, their spouse and anyone claiming under them take nothing under the will — with no floor at the intestate share.^{Source 12Source 9Source 15Source 6Source: MCL 700.2505 — who may witness a will, and the effect of an interested witness (opens in a new tab)•Source: N.C.G.S. 31-10 — a beneficiary as witness, and when the interest is rendered void (opens in a new tab)•}

In New York the fallback is worse than it first appears. A witness whose gift is void recovers only up to what intestacy would have given them — so a spouse or child recovers something, and an unrelated friend, a caregiver or a partner the law does not recognize recovers nothing at all.^{Source 15}

Arizona is the forgiving state on when witnesses must sign and the strict one on who they may be. Those are different questions, and being right about the first does not help with the second.^{Source 6Source 1}

The instruction that is safe in all four states is therefore narrower than any single state requires: use two adult witnesses who inherit nothing under the will, are not married to and not related to anyone who does, and are not named as executor or trustee. That satisfies the strictest of the four and costs nothing to follow. Where the will is signed in a lawyer's office this happens automatically, which is a real part of what the fee buys.

The affidavit that decides how hard probate will be

A validly signed will still has to be proved to a court after the death, and proving it ordinarily means a witness swearing that they watched it being signed. That is straightforward when the witnesses are found and cooperative, and it is the thing most likely to have quietly become impossible twenty years later. All four states offer a way to bank that testimony in advance or in writing, and each does it differently.

• Arizona: a will can be executed, attested and made self-proved in a single sitting, before an officer authorized to administer oaths. In Arizona this is not merely convenient — it is the condition on which a beneficiary's relatives may serve as witnesses at all.
• Florida: a will can be made self-proved at signing or at any later date, and the statutory form allows the acknowledgment to be taken by physical presence or online notarization. A will already signed without one can be cured while the witnesses are still findable.
• New York: an attesting witness may swear an affidavit at the testator's request — during their lifetime — and the court accepts it as though the testimony had been given in court, unless someone objects or the court calls for the witness.
• California: there is no self-proof form of the same kind. Where there is no contest, a will may be proved on one subscribing witness's affidavit, and the will's own attestation clause can be drafted to carry it.^{Source 7Source 13Source 16Source 10}

This is the cheapest and most neglected step in the entire process. It is usually a notary and ten minutes at the time of signing, and what it buys is an executor who does not have to find two people decades later and persuade them to swear to a signature they do not remember.^{Source 7Source 13}

In Florida and New York it can be done after the fact, so a will signed years ago without one is worth revisiting while the witnesses are alive and reachable. Record who the witnesses were and how to find them, whatever state you are in — an affidavit is only useful if somebody knows it exists, and a witness who cannot be identified is the same problem as a witness who cannot be found.^{Source 13Source 16}

How a will is actually revoked, and how people fail to

Replacing a will is the ordinary case and the safe one: a new will that expressly revokes the old one leaves nothing to argue about. The failures happen when someone tries to revoke without executing a new document, or assumes an old copy is harmless.

• A handwritten note saying the will is revoked is not, by itself, enough in New York — revocation there may be effected in one closed list of ways, and a revoking writing must be executed with the same formalities as a will.
• Destroying it works everywhere, but the act and the intent must coincide. A will lost, or thrown out by someone tidying, is not revoked.
• If someone else does the destroying, California requires it be done in the testator's presence and at their direction. New York adds that the fact must be proved by at least two witnesses, neither of whom performed the act — so asking one person to burn it, alone, may not revoke anything.
• In Arizona a burning, tearing or cancellation revokes whether or not the mark touched any of the words. A superseded will that has been scribbled on is evidence of revocation, not a harmless draft.
• In Florida, revoking an electronic will requires proof by clear and convincing evidence — a materially higher bar than for paper, and a reason to treat deleting a file as insufficient on its own.^{Source 17Source 11Source 8Source 14}

Destroy every copy of a superseded will, and tell whoever held one that it is gone. The recurring mess is not a revoked will — it is the old copy in a drawer that nobody knew had been replaced, produced in good faith after a death by someone who inherits more under it.^{Source 8}

What divorce does on its own, and where it stops

All four states revoke gifts to a former spouse automatically on divorce, and read the will as though that person had died first. That is genuinely reassuring, and it is also where this page's costliest misreading starts — because what the state revokes and what actually controls the money are different lists.^{Source 18Source 19Source 20Source 21}

Three things people get wrong

1. Separation is not divorce. California's provision says so in terms: a decree of legal separation that does not end the status of spouses is not a dissolution, so the will still reads as written. Florida's trigger is the point at which the marriage is judicially dissolved or declared invalid — a pending petition does nothing.
2. The reach differs. Arizona operates on governing instruments generally and extends to relatives of the former spouse, so a gift to a former stepchild falls with the gift to the ex. New York's provision reaches the will, a TOD registration, a life insurance beneficiary designation and a bank account in trust form. California's section is about the will, and does not by its own terms reach a designation on a policy or an account.
3. Marrying does not revoke a will. Florida says so expressly, and adds the sting: the will survives, but a pretermitted spouse or child may take a statutory share against it anyway. A will written before a marriage and never revisited produces an outcome nobody chose.^{Source 19Source 20Source 18Source 21}

Where federal law overrides the state answer

New York's own text carries the warning, attaching the words "to the extent permitted by law" to pension and retirement plans. The law it is deferring to is federal. ERISA supersedes state laws insofar as they relate to an employer benefit plan, and a plan fiduciary is required to pay in accordance with the plan's own documents — so a state statute that revokes a former spouse's designation cannot be assumed to reach a 401(k) or a workplace pension. The administrator is looking at the form on file.^{Source 21Source 25Source 26}

• A Thrift Savings Plan designation cannot be made or changed by a will, and stands until the record keeper receives a new one. For the TSP a separated husband or wife is still the spouse — only a decree of divorce or annulment changes that.
• Federal employees' group life insurance can be redirected by a divorce decree, but only where the decree actually reached the office before the death. A decree that says the right thing and was never filed does not move the money.^{Source 22Source 23Source 24}

The practical rule is that the state revocation is a safety net, not a plan. After a divorce, change the beneficiary designations directly — retirement accounts, life insurance, TOD registrations, payable-on-death accounts — rather than relying on a statute to do it. That is the step that is both entirely within your control and most often skipped.^{Source 22}

Two things make this tractable rather than frightening. An ordinary IRA is outside that federal definition, so the state answer can apply to it — which is why the rolled-over IRA and the current 401(k) may behave differently. And you can read the plan document: a plan must furnish its governing documents to a participant or beneficiary who asks in writing.^{Source 28Source 29}

The spouse or child who arrived after the will

Marrying, or having a child, after a will is signed is the other common way a will stops doing what its author intended. Florida, California and Arizona give the newcomer a share anyway — Florida and California measure it against what intestacy would have given them, and Arizona does the same but computes it against a reduced pool. The protection is real, and it is not a substitute for rewriting the will, because what the statute gives is rarely what the person would have chosen.^{Source 41Source 45Source 43}

New York runs the other way and it is the least intuitive rule on this page. Where a testator already had children when the will was executed and made no provision for any of them, a child born afterwards is not entitled to share in the estate at all. A will that deliberately leaves the existing children nothing extends that outcome to a child who did not yet exist — silently, and without anyone intending it.^{Source 47}

The exits, which differ

• Florida: a spouse's claim is defeated by a prenuptial or postnuptial agreement, by providing for them in the will, or by the will disclosing an intention not to. Doing nothing is not one of the exits.
• Florida again, for children: leaving substantially all the estate to the child's other parent counts as having provided for the child, so a later-born child of that marriage takes nothing extra.
• Arizona: a spouse's share is computed against a pool that excludes whatever the will left to the testator's children from an earlier relationship — the difference, in a blended family, between a second spouse displacing the first family and not. An after-born child's claim is limited to what the will gave the children who already existed, so it dilutes their siblings and nobody else.
• California: the trigger is marriage or birth after ALL testamentary instruments, so a later codicil or trust can end the claim. An omitted spouse takes the decedent's half of the community property, the half of the quasi-community property, and an intestate share of the separate property.
• New York has no pretermitted-spouse provision of this kind at all. A spouse married after the will is protected by the right of election instead, which is a different mechanism with a different measure.^{Source 41Source 42Source 43Source 44Source 45Source 46Source 47}

The practical reading of all four: a marriage or a birth is the moment to rewrite the will, not a moment the law quietly handles for you. Every one of these statutes produces an outcome somebody did not choose — and in New York it can produce nothing at all.

When a will has to be revisited

A will is not a document you write once. The events that make an existing one wrong are predictable, and each of them should trigger a review of the will and of every beneficiary designation at the same time.

• Marriage, divorce, or the death of a spouse.
• A birth or adoption, and a child reaching adulthood.
• A move to another state, which changes the formalities and sometimes the marital-property rules.
• Buying or selling real property, particularly in another state.
• The death or unsuitability of a named executor, guardian or trustee.
• A significant change in the size or composition of the estate.

A move across a state line does not usually void a will — states generally honor a will validly executed where it was signed. It can still change how the estate is administered and what a surviving spouse is entitled to, which is reason enough for a review.