United States
Hong KongWills, and what happens without one
A will directs probate assets, names an executor and nominates guardians for minor children. Without one, state intestacy law decides the distribution - usually to a spouse and children in fixed shares, and never to a friend or unmarried partner.
A will is narrower than clients assume and more important than they act on.
What it controls
Probate assets only. Property held solely in the decedent's name with no beneficiary designation and no survivorship feature.
It does not control jointly held property with survivorship, retirement accounts, life insurance, annuities, transfer-on-death accounts, or assets already in a trust.
A client whose assets are almost entirely in those categories has a will that governs very little, which is fine as long as everybody knows it.
What else it does
- Names an executor, or personal representative.
- Nominates a guardian for minor children.
- Can create a testamentary trust that comes into existence at death.
- Can direct how taxes and debts are apportioned.
- Can make specific bequests, and name a residuary beneficiary.
The guardian nomination is the provision that matters most to a young family and the one most often cited as the reason to write a will at all.
Formalities
Generally: in writing, signed by the testator, witnessed by the required number of competent witnesses, with testamentary capacity and free of undue influence.
Holographic wills - entirely handwritten and signed - are valid in some states and not others. Nuncupative, or oral, wills are recognized in very limited circumstances if at all.
In many states a beneficiary who serves as a witness loses the bequest, or has it reduced to what they would have taken under intestacy. It is a straightforward trap and it appears in questions.
Intestacy
Without a valid will, state law decides. Typically a share to the surviving spouse and the remainder to descendants, with the exact split varying considerably by state - and differing where children are from a prior relationship.
Intestacy never provides for an unmarried partner, a stepchild who was never adopted, a friend, or a charity. That is the point questions make about clients in non-traditional family arrangements.
Per stirpes and per capita
Per stirpes: a deceased beneficiary's share passes to their own descendants, by branch of the family.
Per capita at each generation: shares are combined and divided equally among survivors at that generation.
With three children, one predeceased leaving two grandchildren, per stirpes gives each grandchild a sixth. Per capita at each generation divides differently. Questions supply the family tree and expect you to distribute.
The transfer tax exclusion was changed by the 2025 reconciliation act and is indexed thereafter. Confirm the current figure before relying on it, and check state law separately.
Common questions
What does a will control?
Probate assets only - property in the decedent's sole name with no beneficiary designation or survivorship feature. It cannot redirect jointly held property, retirement accounts, insurance or trust assets.
What happens if you die without a will?
State intestacy law decides, typically giving a share to the spouse and the remainder to descendants. It never provides for an unmarried partner, an unadopted stepchild, a friend or a charity.
Can a beneficiary witness a will?
In many states doing so voids or reduces their bequest to what they would have received under intestacy. It is a straightforward trap and it appears in exam questions.
What is the difference between per stirpes and per capita?
Per stirpes passes a deceased beneficiary's share to their own descendants by branch. Per capita at each generation combines shares and divides them equally among survivors at that generation.
What is the most important provision for a young family?
The guardian nomination for minor children. Without it a court decides who raises them, and it is the usual reason a young family writes a will at all.