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Legal FAQs

What is the difference between a will and a living trust?

The key difference between a will and a living trust is that property that passes through a will goes through probate, and property that passes through a living trust does not. So most people who make basic living trusts do so to save their families time and money (by keeping their property out of probate.

Other than that, wills and living trusts perform many of the same functions. They both documents provide a revisable way to distribute your property, and provide management for property that you leave to young beneficiaries. Here are a few other differences:

You can use a will to :

  • name guardians for children
  • forgive debts
  • name beneficiaries for ‘everything else‘ you own
  • name an executor, and
  • use witnesses to finalize your document.

You can use a living trust to:

  • avoid probate
  • provide property management before death
  • keep your property distribution private, and
  • use a notary to finalize your document.

Learn more about the differences between wills and living trusts.

If I have a living trust, do I still need a will?

Yes, most people who make a living trust—like the one you make WillMaker —should also make a backup will to take care of a few things that you can't do in your trust, like name guardians for minor children, name an executor, and name beneficiaries for any property that you don't put into your living trust. In your backup will, you can name specific beneficiaries for your non-trust property, or you can make a pour-over will by naming your trust as the beneficiary of your non-trust property.

Learn more about making Backup and Pour-Over Wills.

What documents do I need in addition to a will?

In addition to a will, most people would also benefit from making WillMaker's Health Care Directive and Durable Power. In these two documents, you appoint trusted people to make medical and financial decisions on your behalf.

Beyond those three essential documents, you might also use a Living Trust or a Transfer on Death Deed to avoid probate.

Finally, consider writing a Letter to Survivors. In this letter, you can leave your loved ones detailed explanations about your decisions, some general thoughts about your life, or a final goodbye.

Do I have to leave property to my children?

You have no legal obligation to leave your children property. If you decide to leave a child nothing, make sure your intent is clear. Otherwise, the child may qualify as an overlooked heir (called "pretermitted" in legal jargon) who might be able to claim a portion of your estate. With WillMaker's, you can make your intentions clear by naming the child in the Family and then leaving that child nothing in the Property section. Later in the interview, the program will ask you if you're sure you don't want to leave anything to that child. And if the answer is yes, your document will print a statement that your failure to leave property to that child is intentional.

Read more about disinheriting children.

Do I have to leave property to my spouse?

Maybe. If you intend to leave your spouse or registered domestic partner very little or no property, you may run into some legal roadblocks. All states have some legal protections for spouses, but how this is done depends on the state.

Common law property states protect a surviving spouse or partner from being completely disinherited by requiring that a surviving spouse receive a specific percentage of a deceased spouse's property. Community Property states offer protection before death by having spouses share income during the marriage.

Learn more about Your Spouse's Right to Inherit from You.

Why can't I make a springing power of attorney with WillMaker?

While it's legally possible to make a financial power of attorney that "springs" into effect when you become incapacitated, doing so is rarely a good idea. In fact, creating a springing power of attorney may cause more problems than it solves.

Under a springing power, when the time comes to use the document, your agent will have to get a "determination" of your incapacity. In other words, someone – usually a doctor – must certify that you can no longer make your own decisions. This process creates delay, privacy issues, and problems about having to define your incapacity before you become incapacitated.

With some caveats, you can avoid these problems by making a durable power of attorney that takes effect as soon as you sign it, like the one you can make with WillMaker.

Read more about The Problem with Springing Powers.

You can avoid these problems by making a durable power of attorney that takes effect as soon as you sign it like the one WillMaker creates. Just make sure your agent understands exactly when and how you want the document to be used. This degree of trust is a basic requirement for naming an agent. If you don't trust your agent to handle the power of attorney exactly as you intend, you should choose someone else to handle your finances.

If you still feel that you want a springing power, see a lawyer for help. An experienced lawyer can draft a power of attorney that is more closely tailored to your specific situation and concerns.

What are those long legal warnings at the beginning of my power of attorney?

Those sections might be an eyesore, but they must (or should) be part of your durable power of attorney. Here's why:

Durable powers of attorney are very powerful documents that give one person the right to manage another person's finances. They can be very useful, but bad people can also use them to steal, commit fraud, or engage in other types of abuse against the principal. So most durable powers of attorney contain some safeguards to ensure that:

1) the principal understands what it means to sign a power of attorney and how dire it could be if the agent (attorney-in-fact) turns out to be a bad person, and

2) the agent understands that the agent's duties require that they act in the principal's best interest.

In many states, the law requires durable powers of attorney to have "warnings" or "notices" at the beginning or end (or both) of the document. These sections of text are often required to be a certain size, capitalized, or bolded (or all three). For example, California's law is here: Cal. Prob. Code s. 4128, and here is how it shows up in WillMaker's California durable power of attorney:

As a safeguard, WillMaker provides a notice to the principal for every state, even if state law doesn't require it.

Nobody knows if these warnings are effective. But we do know that in many states, they are required and that in all states, they add an additional layer of protection against abuse. We also know that institutions looking to accept your power of attorney will see those sections of text as familiar signs of authenticity.

In sum, WillMaker intentionally includes those sections of unsightly text in your document--do not attempt to remove them. When making a durable power of attorney, both you and your agent should read and understand the warnings before signing the document.

Why can't I use WillMaker if I live in Louisiana?

Unlike the other states' laws, Louisiana law is derived from Napoleonic code. This makes Louisiana estate planning law very different from the laws of the rest of the country, and WillMaker doesn't address Louisiana's unique requirements.

Louisiana residents may find some of the forms and information in WillMaker generally useful. But when it comes to making binding legal forms, Nolo can not guarantee that they will be valid in Louisiana. If you live in Louisiana and you need to make a will, durable power of attorney, or health care directive, see a Louisiana lawyer for help.

Can I use WillMaker to make a community property agreement?

WillMaker can help you make a community property agreement if:

  • You live in Washington state
  • You're married, and
  • You want all of your property to go to your spouse.

Community property agreements (CPAs) are usually agreements between married couples that keep community property out of probate when one spouse dies. CPAs can also be used to convert separate property to community property, with the conversion taking effect either on signing or on the death of one of the spouses.

WillMaker provides a CPA only for residents of the state of Washington. WillMaker's Washington CPA is simple and inflexible. In it, the spouses agree that when one spouse dies, all of the deceased spouse's property becomes community property and passes to the surviving spouse without probate. WillMaker automatically prints this CPA when a married person living in Washington makes a will that leaves everything to their spouse. In this situation, the CPA (and instructions for completing it) prints out with the will document. The spouses don't have to use it, but it's provided, just in case.

Can I use WillMaker to make a conditional gift?

No, with WillMaker, you cannot make a bequest that will take effect only if a certain condition occurs –- for example, "$5,000 to John if he stops smoking."

Such conditional bequests are confusing and usually require someone to oversee and supervise the beneficiaries to be sure they satisfy the conditions in the will. For example, when and how could an executor decide that John had really stopped smoking? To use the WillMaker will, you must be willing to leave property to adults outright; you cannot make beneficiaries jump through hoops or change their behavior to get it. (You can, however, appoint an adult to manage property you leave to children or young adults.)

If you really want to make a conditional bequest, seek the advice of an experienced estate planning attorney.

Learn more about Conditional Gifts.

I own property in another country. Can I use my WillMaker to pass that property to my children?

No, don't use the WillMaker to pass on property you own in another country. Instead, have an attorney help you with your estate plan. The laws of the other country may affect how the property passes to beneficiaries, and it may also affect your estate's taxes.

Choose a lawyer who has experience dealing with foreign property because they will need to understand or learn the other country's laws, as well as any international laws that might apply. If necessary, your lawyer can work with an attorney in that country to ensure that local rules are understood.

To be clear, you can use WillMaker to name beneficiaries for property you own in any U.S. state, but if you own property in another country (or in any of the U.S. territories), you need help from an attorney.

Does WillMaker use a no-contest clause?

No. WillMaker does not use a no-contest clause. Many people believe that including a no-contest clause in a will or trust will dissuade any would-be beneficiaries from challenging the will. However, most states will not uphold a no-contest clause if the challenger has a good reason to object to the will – for example, if the challenger shows that the will is not valid because the signer's name was forged. Other states go further and do not uphold no-contest clauses for any reason. So in practice, no-contest clauses rarely work as the deceased person wanted. To avoid a false sense of security about possible will challenges, WillMaker does not include one in its will or trust.

Learn more about no-contest clauses.

Where can I get more information?

You can get more information about WillMaker in the WillMaker FAQ. And you'll find more information about estate planning in the estate planning section of WillMaker's Legal Manual or in the Estate Planning section of Nolo.com.

If you have a WillMaker question that the WillMaker Support page does not answer, contact Nolo's customer support team at 800-728-3555 or [email protected].

Keep in mind that Nolo's Customer Support representatives can answer questions about using WillMaker, but they can't answer legal questions.