A Simple Guide to Wills and Probate for Seniors

  • A will lets you decide who receives your property and personal items. Without a will, state laws decide (intestacy), which may not match your wishes—especially with blended families.
  • States follow different systems: community property or common law. These rules affect what a surviving spouse can receive.
  • Many assets can pass outside probate with beneficiary designations, joint ownership, or transfer-on-death options.
  • You can start today with a short checklist and get help from an estate planning attorney for your state.
    Primary Goal: Help you complete or update a will and schedule a free consultation.
Family gathered around a table, reviewing a will and personal documents, representing protection, clarity, and careful planning.

Why Having a Will Matters

  • Control: You choose who receives your assets and special belongings.
  • Clarity: Reduces family disputes and confusion.
  • Protection for blended families: Ensures children from prior marriages and stepchildren are provided for as you intend.
  • Flexibility: You can name guardians (if relevant), choose an executor, and note funeral preferences.
  • Speed and cost: Proper planning can make settling your estate faster and less expensive.

What Happens If You Die Without a Will (Intestacy)

  • State law decides who inherits. The order typically starts with spouse and children, then parents, siblings, and so on.
  • Blended families are at risk: Children from previous marriages may be excluded, or the split may not reflect your wishes.
  • Spousal protections exist, but the outcome may still differ from what you want.
Family looking confused over inheritance documents, illustrating uncertainty when someone dies without a will.

Community Property vs. Common Law (Know Your State)

Community Property States

Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, Wisconsin.
  • Community property: What either spouse acquires during marriage (by joint efforts) is generally owned 50/50, regardless of whose name is on the title.
  • Separate property: Owned before marriage or received as a gift/inheritance (and income from it), usually remains separate.
  • At death: Half of community property belongs to the surviving spouse; the other half and any separate property can be left by will to anyone. Debts from the marriage are typically shared.

Common Law States

  • Ownership follows title. Assets with a named beneficiary generally pass directly to that person, even if the surviving spouse is not the beneficiary.
  • Elective share: Laws protect a surviving spouse from being completely disinherited, typically allowing a portion of the estate.
House with a moving truck and state map, showing legal documents and a scale of justice, representing estate planning across states.

Moving Between States

  • Moving from a community property state to a common law state (or vice versa) can complicate ownership and inheritance.
  • Some states use the Uniform Disposition of Community Property Rights at Death Act to preserve the character of property after a move.
  • Before or after a move, review your plan with an attorney licensed in your new state.

What To Include in Your Will

  • Your executor (also called personal representative).
  • Specific gifts (cash or items) and who receives them.
  • How to divide the rest of your estate (the “residuary”).
  • Backup beneficiaries and a backup executor.
  • Optional wishes: funeral arrangements and care instructions for pets.

Don’t Forget Your Personal Property List

  • Many seniors value items with sentimental meaning more than their dollar value.
  • Create a separate, dated, signed list for “who gets what” (heirlooms, photos, awards, collections). Keep copies with trusted family members.
  • Ask a local attorney about making this list legally enforceable in your state (e.g., handwritten, signed, dated, witnessed, or notarized if required).

Probate: What It Is and When It Applies

What is probate?

A court process that validates your will, pays debts and taxes, and distributes assets.

Pros

  • Official, court-supervised transfer reduces disputes.
  • Clears title to assets.
  • Limits creditor claim periods in many states.

Cons

  • Time: Often several months or more.
  • Cost: Attorney and court fees in some states.
  • Public record: Privacy concerns.
  • Some states recover certain public benefits from probate estates.

Simplified probate and small estate procedures

  • Many states offer simplified processes for smaller estates or specific asset types (like vehicles).
  • Ask your attorney whether your estate can qualify and how to structure your plan accordingly.

Assets That Usually Avoid Probate

  • Accounts with beneficiary designations: retirement accounts (IRA, 401(k)), life insurance, annuities, payable-on-death (POD) bank accounts.
  • Transfer-on-death (TOD) registrations for securities or real property (in states that allow it).
  • Joint ownership with right of survivorship.
  • Assets held in a properly funded living trust.

Assets That Usually Require Probate

  • Solely owned property with no beneficiary or transfer-on-death designation.
  • Tenancy in common interests.

A Simple 6‑Step Starter Plan

Make a list of what you own

home, vehicles, bank accounts, retirement accounts, insurance, personal items.

Decide your beneficiaries

spouse, children (including from prior marriages), stepchildren, charities.

Choose your executor

Choose your executor and at least one backup.

Update your beneficiaries

IRAs, 401(k)s, life insurance, POD/TOD accounts.

Create or update your will

Create or update your will and personal property list; consider a living trust if you have real estate in multiple states or privacy concerns.

Review after big life events

marriage, divorce, move to another state, death in family, major health changes.
elderly man writing on paper with fruits nearby

Frequently Asked Questions

Do I still need a will if I named beneficiaries?
Yes. A will covers assets without beneficiaries and ensures backups if a beneficiary dies first. It also covers personal items and can express funeral wishes.
Can my spouse be disinherited?
States protect spouses (elective share in common law; community property rules in community property states). Talk to a local attorney for your state’s rules.
I have a blended family. What should I do?
Be specific. Consider a will and possibly a trust to protect both your spouse and children from prior marriages. Keep beneficiary designations current.
How do I keep things private and faster for my family?
Use beneficiary designations, POD/TOD, joint ownership where appropriate, and consider a living trust. Keep documents organized and accessible.
What documents should I have besides a will?
Durable financial power of attorney, healthcare power of attorney, living will/advance directive, HIPAA release, and a consolidated password list or digital executor plan.