A last will and testament (Will) is a legal document that communicates and outlines the final wishes of a person in regard to assets, property, and dependents. The last will outlines what is to be done with possessions; whether the deceased person leaves them to his or her children, another individual, a group, or donates them to charity; the beneficiaries.
How it Works
A Will states what happens to other things such as management of accounts and other financial interests and custody of dependents. Some states allow for unusual or non-standard wills, such as holographic wills. A Will is a key instrument used by the probate court to ensure that the estate of the deceased is settled according to his or her wishes. After the signing, a will must be distributed to all the mentioned beneficiaries and the testator’s lawyer. Filling with probate courts, county clerk’s office or the applicable Secretary of state is optional.
Who Needs a Last Will and Testament
Any legal adult stands to benefit from having a last will, particularly when they want to set how their assets should be distributed if they were to die. Wills are particularly vital important, for parents and people with financial dependents. If you have someone who depends on you financially, you can have peace of mind in the knowledge that you’ve arranged for their provision in your absence through a Will.
If you have children under 18, a Will and Testament is a way of designating the person you want to leave as ‘your kids’ legal guardian if you were to pass on. In many states, mental competence is required when writing a will.
The competency test can be met with a proper understanding of:
- Property owned
- Who are your relatives
- Your relationship with the designated beneficiaries
- What the Will and testament says and means.
Other states have additional guidance on the issue of mental competency. In California for example, an individual with delusions and hallucinations due to mental illness is not deemed competent to make a valid will if it impacts their decision-making. Any questions about making a valid will should be discussed with an attorney.
How to Make a Will
Crafting a Will entails a diversity of areas to address towards a valid document.
Identification of assets & debts
Before writing your last will, make a list of all your valuable assets that contain real and personal property. That might include real estate, bank account balances, investments, life insurance policies, retirement plans, artwork, and anything else of tangible value you are leaving behind.
All your assets should add up to 100%. Then allocate each beneficiary a specific percentage of your total assets. When distributing any real property, ensure you give a detailed description of the specific property and to whom that property goes.
Your last living will can also help establish how your estate should help in settling your debts. First, the assets will pay for any costs associated with the probate process and funeral expenses. They will then flow to your outstanding debts.
Decide whether you want to hire a lawyer
The greatest value provided by a lawyer is professional advice and legal counseling to enable the client to make well-informed choices. The goal is to have an end product—the last Will and Testament— that reflects your wishes, concerns and works the way you desired when the time comes.
If your financial situation is really simple—for example, you only have few assets, no children and plan to leave everything to a single sibling, you may be okay creating a Will on your own. But there are many reasons why you may still want to consult a lawyer for legal guidance.
Identify your will beneficiaries
These are the people, groups, or organizations who are going to inherit the personal belongings and assets you leave behind when you pass on. You are free to name or exclude whomever you want, dividing your estate the way you wish. Often, however, close relatives like children and spouse are the top choices when it comes to beneficiaries.
Choose a legal guardian
Choosing a legal guardian is critical. The guardian is the person who will be responsible for the care and welfare of your children when you are no longer around. That includes providing food, health, schooling, and shelter until age 18.
You can even opt to include a letter explaining your choice of legal guardianship, in case a probate judge questions your choice. The job of the judge is to seek and protect the interests of the child and your choice is contentious, you may want to explain how he or she is the best choice in terms of fulfilling the child’s needs and providing stability or even mention the child’s relationship and preference with this person.
Decide on an executor for your estate
The executor will ensure your last wishes are carried out according to your Will and your finances are in order after you die. This includes making sure your chosen beneficiaries receive what you left them, paying any pending bills, filing your final taxes, and closing all your financial accounts.
An executor is also a person who divides up your assets and property among your beneficiaries upon your death. Select an educated and trustworthy executor and that could be your close associate or lawyer or a close associate. This is the individual that will carry out the instructions as outlined in your Last Will and Testament. You can also decide to appoint a secondary executor as a precaution if your original executor is not in a position to carry out the required tasks.
If you have children under 18, you will need to appoint a legal guardian for your children and the estate. An estate guardian is responsible for overlooking the assets/money on behalf of the children and also acts as a parent taking care of their well-being. One guardian can hold both these responsibilities.
Consider other wishes
Your last will should address any provisions that will be needed for your own situation. For example, if you own any pets, particularly ones with long lifespans such as a horse, you might want to consider including some instruction about their care after you die, and what money they will use to care for them.
Your last will and testament can also include your last wishes regarding your funeral and burial arrangements. If you have any preference about where you want the funeral to be held, state that in your Will as well as what kind of ceremony you desire and who should officiate.
Signing the will and testament
Every state in the US has its own unique requirements for the legality and validity of your Will. However, the state of your primary residence governs your Will and you should try and understand the applicable laws. Most states generally require two witnesses to attest and sign your Will it makes it legal and valid.
Find two witnesses
Identify at least two (2) witnesses that can attest to the Will and sign. The witnesses should be disinterested in the will. To be deemed valid, your Last Will and Testament (Will) must be finalized with your official signature. In terms of witnessing, each state in the US has different requirements. Some require two (2) signatories, none of whom can be beneficiaries of your Will and notarization. No matter your state of residence, therefore, it’s a good idea to have at least two (2) witnesses to view the document signing and make arrangements for this to be done in the office of a public notary.
Get your will notarized
For legal purposes, and to reduce the odds of the document being contested by any third, the testator and the witnesses should authorize the document with a notary public present if applicable in your state, although most don’t have that requirement.
Deliver and store
The Last Will and Testament (Will) is to be kept in a safe place the beneficiaries and legal counsel are provided with original copies. At the option of the testator, the Will may be registered with the probate court in their county if that is applicable.
Free Living Will Forms
We have collection of Online Templates that you can use to create a will easily and quickly. You can download free templates here.
Forms by State
Writing a Will: Laws Vary By State
The last will be governed by the state of primary residence (or where one meets their personal income tax obligations). It’s therefore, wise to be familiar with any rules specific governing Wills in the state where of residence. Different states, for example, apply different rules when it comes to entirely handwritten or holographic wills.
Case in point: While Texas generally recognizes holographic wills, New York only recognizes holographic, handwritten wills only in super specific cases. While most states require two disinterested witnesses, some like Louisiana also require notarization.
Here is a broad rundown for each state:
- Alabama: Check out Title 43, Chapter 8. To ensure your last will is legally binding, two witnesses are needed at the time of signing. The will cannot be signed electronically.
- Alaska: Check the statues in Title 13, Chapter 12. The will and testament must be written down, and signed by the testator or someone signing on their behalf (in the presence of the testator). The signing must happen in front of two (2) witnesses.
- Arizona: The rules can found in Title 14. The signing must be signed by the testator in front of two witnesses (or by someone else in their presence, while they are conscious).
- Arkansas: Look at Title 28 To ensure the will legally is binding, it must be signed in presence of at least two (2) witnesses.
- California: Refer to Sections 6100 to 6139 The will should be signed by the testator, and witnessed and signed by two people.
- Colorado: For details refer to CRS Title 15 The will can be signed in the presence of two witnesses or in front of a public notary.
- Connecticut: These laws are found in Chapter 802a In Connecticut, the will becomes binding if signed in front of two witnesses.
- Delaware: The rules are set out in Title 12 You only need to sign and have two people witness the signing.
- Florida: Check Chapter 732 Execution of a legally binding will means signing in front of two witnesses.
- Georgia: Look at Title 53 You can make the will binding when signed in front of two witnesses.
- Hawaii: Look at rules in Chapter 560 Your Hawaiian will be valid if signed in front of two (2) witnesses.
- Idaho: Rules are found in Title 15 You need two witnesses for the signing.
- Illinois: Read 755 ILCS 5 You just require two witnesses during the will signing.
- Indiana: Look at Title 29 The testator needs to sign in the presence of two witnesses. If the testator chooses to, they are also free to craft a self-proving affidavit.
- Iowa: Check Chapter 633 The testator only requires two witnesses during the signing.
- Kansas: Chapter 59 applies. You need to sign the will in front of two witnesses, who must also sign.
- Kentucky: The regulations are listed in Chapter 394 You sign in front of two witnesses.
- Louisiana: Check statutes CC 1570 Louisiana is among the few states that requires will notarization done in front of a notary public.
- Maine: check Title 18-A, Article 2 You sign in the presence of two witnesses.
- Maryland: Relevant statutes are found in GAM, Estates & Trusts, and Title 4. The will becomes legally valid when signed in presence of two witnesses who must also sign.
- Massachusetts: Check Chapter 190B. The signing must be done in front of two witnesses.
- Michigan: The rules are set out in Act 386 of 1998. You sign in the presence of two witnesses, and they also must sign.
- Minnesota: Check Chapter 524. The signing must be done in front of two witnesses.
- Mississippi: Details are outlined in Title 91, Chapter 5. In this state, if the testator has written and signed the will, no witnesses are actually required. If the testator has not solely created and signed the document, then two or more witnesses are needed.
- Missouri: Check Title XVI. You only need to sign in the presence of two witnesses.
- Montana: Check Title 72. You sign the will in front of two witnesses and they also sign.
- Nebraska: Check Chapter 30. You sign the will in front of two witnesses, who must also sign.
- Nevada: Read statutes in Title 12 Chapter 133. The testator needs to sign the last will along with two witnesses.
- New Hampshire: Read Chapter 551. You should sign in front of two credible witnesses and they too should sign.
- New Jersey: The rules are set in Title 3B. You sign the will in the presence of two witnesses to make it binding.
- New Mexico: The laws are governed by Chapter 45. The signing must be done in front of two witnesses.
- New York: Wills are governed by the New York Estates, Powers, and Trusts provisions. The signing must be done in front of two witnessed who must also sign.
- North Carolina: Requirements are contained in state statutes Chapter 31. Two people must witness and sign.
- North Dakota: Chapter 30.1-08 describes the requirements. The testator may sign the will before at least two witnesses or a Notary Public.
- Ohio: Look at Chapter 2107. The document must be signed in the presence of two witnesses who also sign.
- Oklahoma: Check Title 84. The document must be signed in front of two witnesses who also sign. You may opt to notarize the will.
- Oregon: Read Chapter 112. The signing must be witnessed by two people who must also sign.
- Pennsylvania: Instructions are set out in Title 20, Decedents, Estates and Fiduciaries. The testator must sign the will or mark by sign. The document can be signed by on behalf by another person so long as the testator is present and conscious during the signing in which case, two other witnesses must be present and also sign.
- Rhode Island: Check Title 33. At least two witnesses are required when the will is being signed and they must add their signatures.
- South Carolina: The requirements are in Title 62. The testator must sign witnessed by two people who also sign.
- South Dakota: Details are found in Chapter 29A-1 of the state statutes. Two witnesses must be present for the signing.
- Tennessee: Title 32. If the will is neither nuncupative nor holographic, the testator must sign along with at least two witnesses.
- Texas: The Texas Probate Code provides for the requirements that need to be followed. The will must be signed by the testator and two witnesses. The witnesses must be at least 14 years old.
- Utah: Check the guidelines in Title 75 The will must be signed in front of two witnesses who also sign.
- Vermont: Title 14 applies. You must sign together with two credible witnesses.
- Virginia: The details are found in Title 64.2. The testator must sign together with two witnesses.
- Washington: Wills in this state must adhere to Title 11 RCW. The testator must sign the document and two witnesses.
- West Virginia: Check Chapter 41. The will must have the signature of the testator and two witnesses also sign.
- Wisconsin: Details are found in Chapter 853 The will becomes valid when the testator adds their signature together with two witnesses.
- Wyoming: Title 2 applies. You must sign the will together with two witnesses
In every state except Louisiana and Colorado, two disinterested witnesses plus a public notary are required to make a last will and testament valid.An optional Self-Proving Affidavit can be attached to the last will for the two (2) witnesses to swear under oath that they were in indeed the presence of the testator as they signed.
How to Sign a Will
The signing requirements of a will varies from state to state. Every state requires two witnesses for attesting and signing of your will. Find the information below regarding your state and make sure that you know the requirements.
Consequences of No Will & Testament
When a person dies intestate, without a valid Last Will and Testament (Will), the state becomes the estate executor. In settling the estate, the state decides how the property is distributed and who receives payment first. This is done without weighing in a family’s circumstances.
In case you die without a will and testament and your estate goes to probate, you wouldn’t have the power to leave assets to others outside your family circle. Similarly, it will not be possible to cut out certain relatives from your estate. After such a person (without a will) dies, they are addressed as an intestate person in legal terms.
The court (state) can even set up guardianship arrangements based on the best interests of the children. If a court determines a last will and testament to be improperly drafted, it deems the document invalid. The estate settlement is then subject to the intestate law of the respective state.
Types of Properties that are Not Controlled By Will
In a sense, a Will and Testament a catch-all for your assets and property. However, some kinds of assets are generally not governed by a Will and skip the probate process.
Those properties include:
- Life insurance benefits
- Money or savings in a retirement account such as a pension plan or 401(k)
- Property held on your behalf in a trust
- A home jointly owned with your spouse.
If you have specific wishes about your digital assets, you may want to include instructions regarding them when writing your will. Not that any assets such as a qualified retirement plan or life insurance plan that are not already assigned to a specific beneficiary do not form part of probate assets. These pass to the beneficiaries directly.
Amending a Will
If your wishes and preferences have changed since initially created your will and testament, you may need to update the document. It is a good idea to amend your will whenever you undergo a major life event to reflect the new status and wishes.
For instance, you may want to amend your will as a result of:
- Marriage or divorce
- Birth or adoption of a child
- Selling or buying a home
- Death of an executor or one of the beneficiaries
- Major changes in a personal financial situation.
Note: The reasons can be for many reasons such as changing or naming a new executor, beneficiaries, personal representative, or any other facet that affects the transfer of your estate. Per state law, a Codicil must be attached to the Will and signed by yourself and two witnesses under oath.
Revocation of a Will
- By the execution of a subsequent will: The creation of a new will that completely revokes your earlier Will. Note that a prior version of the will, if any, will not regain its validity once it is destroyed.
- By physical act: When you execute a codicil that revoking some provisions of your previous will that is recognized by the courts as a valid revocation. However, when a testator destroys a will without drafting a new one, the law will consider that person as having died intestate (without a will).
- By operation of law: Sometimes a will revocation happens by operation of law such as in the case of a marriage, the birth of a child, divorce or the sale of property previously covered in the will as that automatically changes the testator’s legal duties and status.
Will vs. Living Trust
Both a Will and Living Trust accomplish a similar goal, the delivery of the ownership of your own assets to beneficiaries upon your demise. There are advantages and disadvantages to both these documents but for most, Living Trusts are deemed to be the better option, particularly for people of higher wealth.
A Living Will allocates money and assets by naming the beneficiaries of your estate. On the other hand, a Living Trust or Fund provides instructions about money that you want to go to specific individuals or organizations in a specific manner.
Once you have created a Living Will, you might want to set up a Trust because Wills are subject to probate while Trusts are not. That means your creditors, children or even other relatives could challenge what a Will says during the court probate process.
A Trust, however, does not in any way replace a Last Will and Testament (Will). The only way one can name an executor for your estate or legal guardian for your children is through a will. Without a valid will, the state where you reside will divide up your assets and property as it deems fit. While a trust is more complex to set up, it can help you bypass the probate process.
Frequently Asked Questions
Is it necessary to have a Will?
If you care about those you love and your family, you will ensure you have a Last Will and Testament. This is very important, particularly if you have a spouse, children are in the later stages of your life. When you die without a Will and Testament, you leave their assets and estate in the hands of the probate and court system. Confusion and disputes can easily arise between members of your family.
Which State governs my Will?
Your Will be governed by the state where you reside. This is typically the state where you pay personal income tax.
Which types of personal property can I include?
Personal property includes any type of item that has value but does not include cash. Items covered include vehicles, collectibles, jewelry, furniture, etc.
Can I appoint someone to take care of my pets?
Yes, in your Last Will and Testament, you can appoint a person to take care of your pets upon your demise.
How much does it cost to make a will?
If you opt to work with an estate planning lawyer, it could cost anywhere from a few hundred to several thousand dollars for the whole process. On average, you can expect to pay an estate planning attorney anywhere between 250 and $350 per hour although that depends on the state. Some lawyers may charge you a flat fee that averages $1,000.
Where should I keep my will?
You must store your Last Will and Testament somewhere safe and secure, where your survivors will know how to access it. The choice of such a location is yours and could be in a safe, a high cabinet shelf, the local county clerk’s office, or with your attorney.
Isn’t it awkward to ask someone to take my kids if I die?
There is nothing wrong with asking someone to take care of your kids, to serve as their legal guardian. Most people will actually feel flattered. What could be bigger a compliment than entrusting someone with the future of your child?
Do I need a will if I have a payable-on-death (POD) account?
Most people stand to benefit from both a Will and payable on death (POD) account. POD accounts are best for quick cash for those handling your final personal affairs or money for paying bills. Your will allows you to get clearer details about the more elaborate aspects of settling your estate.
Do I need to consider my funeral arrangement?
Although you can include additional documents laying out your wishes, last requests such as funeral plans need not be included in your actual Last Will and Testament.