A will or last testament is a legal document that directs how your property should be distributed after death. Without a will, state intestacy laws determine who inherits your assets—which may not match your wishes. A valid will ensures your property goes where you want and can simplify the process for your loved ones.
Creating a will doesn't require immense wealth or complex estates. Anyone with assets, minor children, or specific wishes about their legacy benefits from having a proper will in place.
Why You Need a Will
When someone dies without a will (intestate), state law dictates inheritance based on family relationships. Typically, spouses and children inherit first, then parents, siblings, and more distant relatives. This default scheme may not reflect your actual relationships or intentions.
Without a will, your unmarried partner inherits nothing. Close friends, charities, and non-family caregivers receive nothing under intestacy. If you want anyone outside your immediate family to inherit, you need a will.
For parents of minor children, wills are essential for naming guardians. Without your designation, courts decide who raises your children based on what seems best—not necessarily who you would choose.
Requirements for Valid Wills
To create a valid will, you must have testamentary capacity—understanding that you're making a will, knowing what property you own, and understanding who would naturally inherit from you. Age requirements vary by state but typically require being 18 or older.
Wills must be signed by the testator (the person making the will) and witnessed according to state requirements. Most states require two witnesses who watch you sign and then sign themselves. Some states have additional requirements like notarization.
Witnesses generally should not be beneficiaries under the will. Having interested witnesses can create challenges or invalidate their gifts. Choose disinterested adults who can later testify if needed.
Types of Wills
A simple will handles straightforward estates—naming beneficiaries, designating an executor, and distributing assets directly to heirs. This works well for people with modest assets and uncomplicated family situations.
Testamentary trust wills create trusts upon death to manage assets for beneficiaries who shouldn't receive everything outright—minor children, spendthrift adults, or beneficiaries with special needs who could lose government benefits from direct inheritance.
Holographic wills are handwritten wills without witnesses. Some states accept them; others don't. Even where valid, they're more easily challenged. Typed, witnessed wills are safer.
What a Will Cannot Do
Wills don't control all assets. Property with designated beneficiaries—life insurance, retirement accounts, payable-on-death bank accounts—passes directly to named beneficiaries regardless of your will.
Jointly owned property with right of survivorship automatically passes to the surviving owner, not through your will. If you own your home jointly with your spouse, they inherit it by operation of law.
Property held in a living trust passes according to trust terms, not your will. For comprehensive estate planning, coordinate your will with beneficiary designations, joint ownership, and any trusts.
Choosing an Executor
Your executor (sometimes called personal representative) manages your estate after death—gathering assets, paying debts and taxes, and distributing inheritance. Choose someone trustworthy, organized, and willing to serve.
Name alternate executors in case your first choice cannot or will not serve. Consider whether out-of-state executors can qualify in your state and whether professional executors are appropriate for complex estates.
Executors are entitled to compensation—either a reasonable fee or percentage of the estate value depending on state law. Family members often waive fees; professional executors don't.
Working with an Attorney
While simple wills can be created without lawyers using online services or software, professional guidance helps avoid mistakes that cause problems later. Attorneys ensure your will meets state requirements, addresses tax implications, and actually accomplishes your goals.
Complex situations—blended families, business ownership, significant assets, disabled beneficiaries—benefit especially from professional drafting. The cost of proper estate planning is far less than litigation over poorly drafted documents.
After Creating Your Will
Store your signed will safely—a fireproof safe, bank safe deposit box, or with your attorney. Tell your executor where to find it. A will that cannot be located is essentially no will at all.
Review your will periodically and after major life changes: marriage, divorce, births, deaths, or significant asset changes. Outdated wills may not reflect current wishes or circumstances.
Getting Legal Help
Estate planning attorneys help you create wills that accomplish your goals and withstand challenges. They identify issues you might not consider—tax planning opportunities, potential family conflicts, coordination with other estate planning tools. For something as important as providing for your loved ones after death, professional guidance ensures your wishes are properly documented and will be carried out.