Questions to Ask a Lawyer About Wills
Questions to ask a lawyer about wills, for the appointment you book before making a will or when an old one needs bringing up to date. They follow the order the conversation usually takes: what a will covers and what it costs, the executor and guardians, family situations that need care, the house and other property, probate and tax, then the documents that go with a will, signing, storage and review. Rules differ by state and country, so treat the note under each question as a prompt for your own lawyer, not as legal advice.
The questions
Each question, and why to ask it
Before making a will
Given what I own and where I live, do I need a will, a trust, or both?
Why ask it
The case for adding a trust to a will rests on particular facts: property in another state or country, a beneficiary who should not receive a lump sum, a wish to keep the details out of court records. Expect to be asked what you own before either is recommended. A trust also has to be set up and kept up to date, so hear what that involves and what it costs.
If I died without a will, who would inherit and who would be put in charge?
Why ask it
Every state and country has a default order of relatives, and it takes no account of who you are close to or who you have fallen out with. Have the lawyer trace it through your family as it stands today. That default is what the will is there to change, and now and then it turns out to be close to what you wanted.
Is there anything I own that a will does not control?
Why ask it
Retirement accounts, life insurance and jointly owned property usually go to whoever is named on the form or the title, whatever the will says. Go through yours one by one against the plan. A former partner still named on an old policy may not be displaced by a new will, depending on the local rules.
What will this cost, and what should I expect to pay later for changes?
Why ask it
If the quote is a flat fee, find out what it includes: the meeting, a round of corrections, the signing, storing the original. Then get the price of a small amendment. Some firms bundle updates for a period, and some charge nearly the original fee for a one-line change.
What do you need from me before you can start drafting?
Why ask it
Full legal names and dates of birth for everyone you plan to mention matter more than people expect, since a misnamed beneficiary is a drafting problem later. A firm with a written checklist or questionnaire will send it ahead, and filling it in at home leaves the meeting for the decisions that need a lawyer.
How long does it take to get from this meeting to a signed will?
Why ask it
A good answer lists the steps: instructions, a draft for you to read, corrections, a signing appointment. If you are about to travel or go into the hospital, say so now, because some lawyers will prepare a short will to sign in the meantime.
How much of your work is wills and estates, and who will actually draft mine?
Why ask it
A lawyer who writes wills every week knows the habits of the local probate court, which a generalist may not. If a junior or a paralegal prepares the draft, that is normal. What you want to hear is who reviews it and who you call with questions.
I already have a will. Should it be amended or replaced?
Why ask it
A short amendment, usually called a codicil, generally has to be signed with the same formality as the will and then kept with it, so starting fresh is often tidier. Bring the old one along. A marriage or divorce since you signed may already have changed its effect, depending on where you live.
What would I be giving up if I used an online will form?
Why ask it
A fair-minded lawyer will say a form can work for a simple estate and then name what it tends to miss: the local signing rules, assets that pass outside the will, a family that does not fit the boxes. If the only answer is alarm, you have learned something about the lawyer too.
Executor and guardians
Who should I name as executor, and what will that person actually have to do?
Why ask it
The job is administrative and slow: inventories, notices, tax filings, dealing with beneficiaries who disagree. Get a rough idea of how many months it tends to run locally, then consider whether the person you had in mind can face that.
What happens if my executor cannot or will not act when the time comes?
Why ask it
People die out of order, fall ill, or decline the role. A substitute is one more line in the will. Without one a court may have to appoint somebody, and it is worth hearing who that would be under the local rules.
Can my executor also inherit under the will, and are they paid for the work?
Why ask it
Naming someone who also inherits is common, and in many families it is the obvious choice. What varies by place is the pay: sometimes the law sets a fee, sometimes the will does, and a family member often waives it. Check too whether a relative living in another state or country is allowed to serve.
Is it better to name two executors together or one with a backup?
Why ask it
Two can keep an eye on each other, and they can also deadlock, since joint executors may need to agree and sign together. If the reason for naming both children is to avoid hurting one of them, tell the lawyer that plainly and ask what else would do it.
If there is nobody in my family I would ask, can a professional be my executor?
Why ask it
A lawyer, an accountant or a bank's trust department can usually be named, and they charge for it, by the hour in some places and as a percentage of the estate in others. Get the basis of the charge in writing before the will is signed. If the lawyer offers to do it personally, compare that price with a friend or relative doing the job with paid help.
Who would raise my children if I died while they were young, and should the same person manage their money?
Why ask it
Caring for a child and controlling their inheritance can be given to two different people, and some parents prefer that, because the relative best at raising a child is not always the one you would trust with the money. What needs settling is how the two would deal with each other when the guardian wants money for school fees or a bigger home.
What if the guardian I choose cannot take the children, or their other parent objects?
Why ask it
A will usually nominates a guardian and a court confirms the choice, with a surviving parent generally first in line. Name a second choice, and if you have real reasons to doubt the other parent, find out how they can be put on record where you live.
Family
Should my spouse and I have separate wills, and can you act for both of us?
Why ask it
Couples commonly sign two matching wills, not one joint document, so the survivor stays free to update theirs. One lawyer for both of you is normal while you agree. The thing to raise is confidentiality: what happens if one of you later wants a change the other is not told about?
What if my spouse and I die together, or within days of each other?
Why ask it
Wills commonly say a beneficiary must outlive you by a set number of days before they inherit, so that everything does not pass through two estates in a week and end up with one side of the family. Check what period the draft uses. Then read the backup names in both wills, because in this case they are the people who would inherit.
This is a second marriage. How do I provide for my spouse and still be sure my children inherit?
Why ask it
Leaving everything to a spouse and trusting them to pass it on depends on a will they remain free to rewrite. There are arrangements that give a spouse the home or an income for life and fix where the remainder goes, and you want to hear what each costs to set up and run.
Would my unmarried partner or my stepchildren receive anything unless the will names them?
Why ask it
In many places the default rules leave out a partner you never married and stepchildren you never adopted, however long you have lived as one family. Check the position where you live, and have each person named in full instead of relying on a word like 'children'.
How do I leave money to a young adult without handing it all over at eighteen?
Why ask it
Staged payments, or a trust that releases money at an age you choose or for a purpose such as education, are ordinary drafting, so ask what each would add to the fee. Without them, an inheritance is typically payable in full at the age of majority.
One of my beneficiaries receives disability benefits. How do I leave them something without affecting that?
Why ask it
A gift paid straight to someone on means-tested benefits can reduce or stop them, and the rules depend on the benefit and the country. The usual answer is a trust written for the purpose. Listen for whether the lawyer raises one unprompted and has set them up before.
I have already given or lent money to one of my children. Should the will take that into account?
Why ask it
Left unmentioned, an old loan or a down payment becomes the thing siblings argue about afterwards. The will can forgive it, deduct it from that child's share, or say outright that it is to be ignored. Bring whatever paperwork exists, even if it is one text message.
Can I leave a child or another relative out of the will altogether?
Why ask it
Many legal systems protect a spouse, and some protect children or other dependents, with a fixed share or a right to claim that a will cannot remove. Find out where you stand before deciding, since a will that ignores those rights can be overridden by a court. Where leaving someone out is allowed, the lawyer may suggest naming them and saying so, to show it was not an oversight.
How likely is a challenge from someone I am leaving out, and what reduces that risk?
Why ask it
Three things to pin down: who is allowed to contest a will in your state or country, whether writing your reasons into the document helps or hands them something to argue with, and how the courts there treat a clause that penalizes a challenge. The lawyer's own notes of your instructions can matter later too, so give your reasons in the meeting.
I am helping an elderly parent make a will. How do you handle that meeting?
Why ask it
Expect the lawyer to ask to see your parent alone for at least part of it, and take that as a good sign. A will is far easier to defend later if the instructions clearly came from the person signing, with nobody who benefits sitting in the room.
Property
What happens to my house, and does it pass through the will at all?
Why ask it
How the title is held often decides this before the will is read: a home owned jointly with a right of survivorship may go straight to the other owner. A copy of the deed or title settles which you have. If the will gives the house to one person, talk through whether they could afford to keep it and what the others receive in its place.
How should I deal with belongings that more than one person will want?
Why ask it
A ring or a toolbox cannot be divided the way a bank balance can, which is why small things cause large arguments. Some places let a will refer to a separate signed list of personal items that you can update without redoing the will, so check whether yours does. Failing that, the will can set a method, such as taking turns to choose.
What happens to everything I do not mention by name?
Why ask it
Whatever is left after the specific gifts falls into what lawyers call the residue, and for many people that is most of the estate. Check who the draft names to receive it, because a will with no residuary clause can leave part of your property to the no-will rules.
If someone I leave a gift to dies before I do, where does it go?
Why ask it
The default differs by place and by how the person was related to you: the gift may pass to their children or drop back into the rest of the estate. Decide which you want for each person and have it written in, so nobody has to guess.
I own a business, or a share of one. What should the will say about it?
Why ask it
Start with the first month: someone needs authority to pay staff and sign at the bank before probate is finished. If you have partners, bring the partnership or shareholder agreement, which may already decide who can buy your share and at what price.
What happens to my email, photos and online accounts, and can the will give someone access?
Why ask it
Each provider's terms decide who may get in, and local law may add to that, so a list of passwords does not amount to permission to use them. The will can give your executor authority over accounts in wording the lawyer chooses. Some services also let you name a person in advance in their own settings, so mention any you have set up.
How do I make sure a pet is looked after?
Why ask it
The law generally treats an animal as property, so the pet is left to a person and money cannot be left to the pet itself. Some places allow a trust for an animal's care, which is worth asking about. Whatever the structure, the step that matters is getting a yes from the person before you name them.
Can I leave part of my estate to a charity, and how should the gift be worded?
Why ask it
Bring the charity's registered name and number, because a gift to a misnamed or defunct organization can end up in front of a court. A set amount is generally paid before the shares of whatever is left, so it holds its size if the estate shrinks while your family's portion does not. A percentage avoids that.
Can I attach conditions to a gift, and will they hold up?
Why ask it
Conditions about reaching an age or finishing school can usually be drafted, typically through a trust with someone to judge whether they were met. Conditions about who a person marries or how they live are another matter, so ask which kinds the courts where you live refuse to enforce.
Probate and tax
What would probate look like for my estate: how long, how much, and is it public?
Why ask it
Get an estimate for an estate like yours in the local court: months or years, a fixed fee or a percentage, and whether the filed will is open to anyone who asks. If the delay or the publicity bothers you, this is the moment to hear what could be arranged to pass outside probate.
How soon after I die could my family get at money for the funeral and the bills?
Why ask it
Accounts in your sole name may be frozen until the court appoints your executor, which can take weeks or longer. Some banks will release money for a funeral against the invoice, and a joint account or a named beneficiary can cover the rest. The lawyer will know what happens locally.
Who pays my debts and the mortgage, and which gifts shrink first if money runs short?
Why ask it
Creditors and expenses generally come first, and the law sets an order in which gifts are cut back unless the will sets its own. The mortgage is the detail to settle: does the person receiving the house take it with the loan attached or free of it? The draft has to say.
Are there taxes my estate or my beneficiaries would face?
Why ask it
Whether anything is owed depends on the size of the estate and on where you and your beneficiaries live: some places tax the estate, some tax the person inheriting, and many tax nothing below a threshold. Give real figures so the answer is about you. Mention retirement accounts in particular, which often have their own tax rules for whoever receives them.
If I move to another state, or own property abroad, what changes?
Why ask it
A will that was valid where you signed it is often still recognized after a move, but the rules around it change: what a spouse can claim, what is taxed, how the estate is handled. Property in another country may need its own will there, drafted so that neither cancels the other, and that is easier to raise before you buy.
Signing and after
What documents should I sign alongside the will?
Why ask it
A will only speaks once you have died. If an accident or illness left you unable to manage, it would be a power of attorney, a separate document, that lets someone you chose pay the bills and deal with the bank. Without one, in many places a relative has to go to court for that authority, so get both priced together.
Is a living will the same kind of document, and do I need one too?
Why ask it
Despite the name, a living will has nothing to do with property. It records the medical treatment you would or would not want if you could not speak for yourself, and it often sits beside a document naming someone to decide for you. Names and forms differ from place to place, so find out what yours is called and who should hold a copy.
Should my funeral wishes go in the will or somewhere else?
Why ask it
Wills are often not looked at until after the funeral, so wishes written only there can arrive too late. A separate signed letter, with a copy given to whoever will make the arrangements, usually works better. Whether such wishes bind anyone or are only guidance depends on where you live.
What has to happen at the signing for the will to be valid, and can I sign it at home?
Why ask it
Most of the rules are about witnesses: how many, whether someone who inherits can be one, and whether everyone has to be in the room together. A mistake here can undo the whole document, which is why many firms insist on supervising. If getting to the office is hard, a home visit or remote signing may be allowed in your state or country.
Would a will I wrote out by hand count here?
Why ask it
Some places accept a will written entirely in your own handwriting with no witnesses, some accept it only in narrow circumstances, and some not at all. If you have one in a drawer, bring it. The lawyer can say whether it would stand today and whether anything you added later has damaged it.
Do you keep the signed original, or do I, and who should be told where it is?
Why ask it
Courts generally want the signed original, so a photocopy in a drawer may not be enough. Many firms will hold it, sometimes for a fee, and a bank box can be slow to open if you were the only person allowed in. Wherever it goes, give your executor the location and the firm's number.
What should happen to my old will and any copies once the new one is signed?
Why ask it
A new will normally says it revokes earlier ones, but an old original left in a drawer can still be the one somebody finds. Firms differ: some destroy it, some mark it revoked, some hand it back. Settle that at signing, and collect any copies you gave to family.
When should this be reviewed, and what changes make it urgent?
Why ask it
Marriage, divorce, a birth, the death of someone named in the will, a move, or the sale of something the will gives away can each leave it saying something you no longer mean. Sort that list with the lawyer into what needs a call the same month and what can wait for a routine look every few years.
What happens to my file and the original if you retire or the firm closes?
Why ask it
Wills outlast law practices. A firm that stores originals should be able to say who takes them over and how you or your executor would be told, and a shrug here is a reason to keep the original yourself.
Should my family read the will now, or only know that it exists?
Why ask it
There is no rule here, only trade-offs. Openness lets you explain an uneven split in person, and privacy leaves you free to change your mind without a scene. A lawyer who has watched both go wrong can tell you which suits your family, and either way your executor should know where the document is.
Preparing to make a will
Practical guidance for the conversation itself
Before the appointment
- 1Make a rough inventory with values: the home, bank and investment accounts, pensions or retirement plans, life insurance, vehicles, any business, and what you owe.
- 2Look up who is named as beneficiary on each pension, retirement account and insurance policy. A form filled in at a first job may still be the one in force.
- 3Write down how property is held: sole name, joint with someone, or with a survivorship right.
- 4Decide who you would name as executor, as guardian if you have young children, and as substitutes for each, and ask them first.
- 5Note anything you expect to be difficult: an estranged relative, a second marriage, a child who needs more help than the others, a business with a partner.
- 6Collect the papers that may already bind you: an earlier will, a prenuptial or separation agreement, a divorce order, a partnership or shareholder agreement. The lawyer needs to read them before drafting around them.
Reading the draft before you sign
- Check every name against an official document. Nicknames, maiden names and a missing middle name are the easy errors to fix now and awkward ones to fix later.
- Find the clause that deals with everything not specifically given away, and make sure the person named there is the one you mean.
- Look for a substitute beside every role and every gift: a second executor, a second guardian, and a line saying where a share goes if that beneficiary dies first.
- Ask for any sentence you cannot follow to be explained in plain words. You are the one signing it, and your family is the one who will live with it.
- Compare the draft with your beneficiary forms and property titles one last time, since those are the assets the will does not reach.
Telling your family
- Tell the executor that you have named them, where the original is kept, and who the lawyer is. Surprise appointments cause delay at the worst moment.
- Explaining an uneven division while you are alive is usually easier than leaving the explanation to a document. It also gives people time to absorb it.
- You do not have to disclose amounts to disclose structure. Saying that one child is trustee and another receives their share in stages removes the surprise without putting a number on anything.
- Give copies of any medical directive to the people who would use it: the person you named to decide, your doctor, and a family member. A copy that exists only in a file at home is hard to find in an emergency.
- Revisit the conversation after any major family change rather than assuming the earlier one still stands.
Common mistakes
- Updating the will after a divorce or a death but not the beneficiary forms on accounts and policies, so the two point in different directions.
- Naming a child as the direct beneficiary of an account or policy. In many places a court then has to appoint someone to manage the money until the child is an adult.
- Keeping the original in a place only you can open, such as a home safe whose code nobody else has.
- Crossing out or writing on the signed original. In some places that cancels the clause, in others the whole will, and in others it changes nothing, so every change should go through the lawyer.
- Treating the will as finished. Most plans need a look every few years and a proper revision after any large life change.