Does Your Parent Have a Will? Here's What Happens If They Don't

Ask most adult children whether their parent has a will and you'll get one of three answers: "I think so," "I'm not sure," or an uncomfortable silence. Very few will say yes with confidence.

That uncertainty is the problem. A will isn't a nice-to-have. It's the document that determines whether your parent's wishes actually get followed — or whether the state makes those decisions for them.

What a Will Actually Does

A will is a legal document that specifies who gets what when your parent dies. It names an executor — the person responsible for carrying out those instructions. And it can cover things people often don't think about: who gets the furniture, who gets the jewelry, what happens to the house, who takes care of a pet.

Without a will, your parent dies "intestate." That means state law determines who inherits, in what proportions, and who acts as administrator of the estate. State law doesn't know your parent. It doesn't know that the youngest sibling was estranged, or that a piece of jewelry was promised to a specific grandchild, or that a charitable cause mattered to them. It has a formula, and it applies it.

What a Trust Does (and When It Makes Sense)

A revocable living trust is often discussed alongside wills because it can accomplish similar goals — with some advantages.

Assets held in a trust pass directly to beneficiaries without going through probate, which is the court-supervised process for distributing an estate. Probate is public, it takes time (often months, sometimes over a year), and it costs money. A trust avoids all of that.

A trust also allows more specific instructions: how and when assets are distributed, what happens if a beneficiary has special needs, provisions for ongoing management of assets.

Whether a trust makes sense depends on the complexity of your parent's estate, the state they live in, and what they want to accomplish. In some states probate is relatively painless; in others it's genuinely burdensome. An elder law attorney can tell you which situation you're in.

The practical answer for most families: a will is the minimum. A trust is worth considering if the estate has significant assets, real property in multiple states, or beneficiaries with complicated situations (a child with disabilities, a blended family, etc.).

The Thing That Often Gets Overlooked: Is It Current?

Many people have a will. What they don't have is a current will.

A will made in 1995 may name an executor who has since died. It may leave assets to a spouse after a divorce. It may completely omit children born after it was signed. It may reflect financial and family circumstances that no longer exist.

If your parent has a will, the question isn't just "does it exist?" It's "does it still reflect what they actually want?" Most estate planners recommend reviewing documents every three to five years and after any major life change — marriage, divorce, death of a beneficiary, significant change in assets.

Beneficiary Designations: The Part the Will Doesn't Control

Here's something many families learn too late: a will doesn't control everything.

Assets with named beneficiaries — retirement accounts like IRAs and 401(k)s, life insurance policies, bank accounts with payable-on-death designations — pass directly to those beneficiaries regardless of what the will says.

If your parent named their now-deceased first spouse as the beneficiary on a retirement account forty years ago and never updated it, that account may not go where anyone expects. These designations override the will.

Part of getting the estate plan in order is reviewing beneficiary designations on all financial accounts and insurance policies, not just signing a will.

Getting It Done

The right professional is an elder law attorney — someone who focuses on estate planning in the context of aging, long-term care, and Medicaid. Not every general estate attorney knows the intersections with elder care law, and those intersections matter.

For straightforward situations, many offer document packages at a flat rate. The conversation is easier than most people expect. The documents get signed, filed, and put somewhere everyone knows about.

The time constraint that nobody likes talking about: once significant cognitive decline sets in, your parent may no longer have the legal capacity to execute these documents. The window to do this well is before a health crisis, not during one.

If you've been waiting for the right moment — this is it. Schedule the conversation, then schedule the appointment.

---

Once the will and trust questions are handled, make sure the operational legal documents are also in place — the power of attorney, advance directive, and HIPAA authorization that determine what happens during a health crisis, not after.