A last will and testament is a legal document outlining your wishes for how your property and affairs are handled when you pass away and how you want your family to conduct your funeral.
What Makes a Will Legal?
A legally valid will must be a written document stating that it’s your will with your signature and a date. You must also have two witnesses who aren’t on your will to observe your signature.
What Is a Last Will and Testament?
A last will and testament outlines what should be done with your property and other affairs after you pass away. You can use it to instruct your family members and the probate court. For example, you can:
- Name an executor (or a personal representative)
- Leave certain gifts
- Name a guardian for minor children
- Take care of remaining debts
- Plan inheritances
- Make charitable contributions
- Decide how you want your family members to conduct your funeral
You must be old enough to make or witness a will or serve as an executor.
The legal age is at least 18 in most states. A notable exception is Georgia (14+). Some states have exceptions and allow some people, such as married individuals or individuals in the armed forces, to make a will when they’re younger than the established legal age.
If you die without a will (known as dying intestate), your state’s laws define who gets your property and who cares for your children. You need a last will to choose what happens to your property and loved ones after you pass away.
Can I Make My Own Last Will?
Yes, you can make your own will. Especially if you have a small estate, you won’t need to go through an estate planning attorney to create a simple, legally binding document.
Depending on your situation, you may choose to make a revocable living trust instead of a will. You must understand the differences between a will and trust to determine which is right for you.
Who Needs a Last Will and Testament?
You generally need a will if you expect to own property, have children, or have any money at your death. Consider creating or updating your will if you:
- Travel a lot or live abroad.
- Recently moved or purchased a new home.
- Serve in the military.
- Came into new wealth, assets, or property.
- Recently got married or divorced.
- Are a parent or grandparent.
- Are a pet owner.
What Happens If You Don’t Have a Last Will?
If you don’t have a valid last will, you put your loved ones at risk for financial and emotional distress. For example:
Drawbacks of Not Having a Will
- You have no control over who inherits your property.
- Your children might not receive your inheritance, as it may go to a spouse instead.
- Your relatives may argue over who receives what, causing rifts in the family.
- You have no say over your funeral, including financing it and the handling of your remains.
- The courts may appoint an unwanted guardian for your children, elderly parents, or pets.
- Control of your digital property and online accounts may go to someone you might not trust or know well.
Everyone should consider having a last will and testament as part of their estate plan to take care of their property and remaining assets when they pass away.
According to the American Bar Association, you don’t have to use a lawyer to write your will. A will is legally valid if it meets your state’s requirements [1] .
If, however, you have extensive wealth or complicated concerns, a lawyer can help you navigate your bequests’ legal and tax implications and preferences.
What to Include in a Last Will
The main areas that you need to pay attention to in a last will include the following:
Appointment of an Executor
The executor is the person who will settle your affairs and carry out your last will in its entirety.
The document should also name a backup executor if your first-choice executor dies or can’t fulfill their role due to any reason, like suffering from a mental health condition.
You may arrange for someone to pay the executor for their time. This payment can be a percentage of your estate or a flat or hourly fee.
Assets
Your assets are your money and property. They can be real assets (tangible personal property, land, and houses) or digital assets (such as online accounts, social media accounts, domain names, and money in various online accounts).
Identify your assets in your last will and where you’d like them to go after you pass away.
Beneficiaries
Beneficiaries are the people and organizations you want to receive your assets. They’re usually family and friends, but they can also be charitable organizations and other institutions where you donate your assets (like a university or church).
Before your assets go to your beneficiaries, debtors collect what you owe them from your estate. The remainder is your residuary estate.
Note that only assets for which you’re the sole owner are part of your estate. For example, a joint bank account in your and your spouse’s names will not be part of your estate, as it becomes your spouse’s property. Shared property that won’t go into your estate also includes homes, automobiles, land, life insurance, and other assets with more than one owner on the title.
Designated Guardian(s)
A legal guardian takes responsibility for your dependent minors (children) or elders if you and your spouse are deceased or if your spouse cannot care for them after you pass away.
Funeral Arrangements
When you fill out your will form, outline your funeral wishes. Include how and where you want your family to conduct it and allocate money for them to conduct it.
Also, if you expect significant medical expenses in the days before your death, put aside funds to cover them.
Signed Witnesses
Make your last will form official by signing it and ensuring two witnesses observe your signature. While two witnesses is the standard, the number of witnesses required will vary depending on the laws in your state.
State law can also differ on who can witness the last will. Still, typically, they must be a disinterested party, of legal age, and of “sound mind.”
How to Write a Last Will (7 Steps)
Step 1 – Add Your Personal Information
In the document’s header, fill in your name as the person for whom you’re creating the last will. Then, add your address and details about your spouse and children.
Step 2 – Add the Executor’s Information
Determine who will carry out your will’s terms. Depending on your state, there might be restrictions regarding who can legally be an executor. However, all states require the executor to be 18 years old.
You should appoint a successor executor if your first choice cannot fulfill its duties.
Step 3 – Include the Executor’s Compensation and Powers
Mention if you want the executor to receive any compensation or if they should have any specific powers.
In this section, you can provide as much detail as you want about the executor’s payment or leave it to their discretion.
Step 4 – Specify the Beneficiaries of Your Assets
Personal property, cash, or remaining estate must include the person’s name and the specific assets they will receive.
After all property, expenses, and debt have been distributed, you can assign a beneficiary to the remaining estate.
Step 5 – Appoint Guardians
In this section, you’ll appoint guardians for minors, elders, or pets. You can also designate funds to ease the guardians’ burden.
Step 6 – Assign Witnesses and Signatures
Check your state laws to determine how many witnesses you need and who can legally serve as a witness where you live. In most cases, two disinterested witnesses who aren’t part of the will at all must sign the document indicating that you are of sound mind and you signed it willingly.
Step 7 – Add a Self-Proving Affidavit
A self-proving affidavit is a sworn statement that proves the will’s validity. It is signed by you and your witnesses in front of a notary public. The last will does not need a self-proving affidavit to be legal, but having one will significantly speed up the probate process for your family.
Key Terms Relating to a Last Will and Testament
If you want to write your own Last Will, you need to understand the following key terms:
- Testator: The person making the will.
- Probate: The legal process carried out in court after the testator passes away — specifically to assess your last will and ensure it’s valid.
- Executor: The person you name to settle your affairs and make sure your wishes, as your will outlines, are carried out.
- Guardian: The person you want to look after your children, elders, and/or pets if your spouse can’t assume the responsibility.
- Beneficiary: The people or organizations you want to receive your assets.
- Assets: Money, property, and other items of value.
- Witness: Someone mentally fit and of legal age who signs your last will and can verify its authenticity.
Last Will and Testament Sample
Download a free last will and testament form in PDF or Word format below:
Frequently Asked Questions
How Long Does a Will Last?
A last will remains valid indefinitely unless you legally revoke or change it. You must execute this document according to your jurisdiction’s legal requirements. It may become invalid due to a lack of compliance with legal formalities or if it resulted from undue influence, coercion, or fraud.
Where Should I Store the Will?
Keep your will in a safe, accessible place so your loved ones can access it when you pass away. You may keep it with an attorney, in a document storage service, at home in a safe, in a safe deposit box, or with a trusted family member or friend.
Can I Assign Care Instructions for My Pet in My Will?
Yes, you can assign care instructions for a pet in your will. You can name a specific caregiver who will become responsible for the pet’s daily care. You may also designate the distribution of some of your assets to fund the pet’s expenses.
Do I Have to Leave Something to My Children and Spouse?
It depends on your jurisdiction’s laws. Many states have laws that protect spouses from becoming completely disinherited. Most states don’t require people to leave assets to their adult children if they don’t want to. However, you may have to leave something for your minor children to provide them with financial protection until they enter adulthood.
Can I Edit My Will?
Yes. However, the exact editing process varies depending on the type of change you want to make. You may use a codicil to a will template to make specific alterations.
If you want to make extensive changes that are difficult to document, you can create a new will. Ensure the new will states that the new document revokes all previous wills and codicils.
What Other Estate-Planning Tools Should I Have?
In addition to a last will and testament, here are some other legal documents you should create to protect yourself and your loved ones in the event of your incapacitation or death:
- A living will (advance healthcare directive)
- Durable power of attorney forms
- A guardianship designation
- A HIPAA authorization form
Can I Use a Last Will and Testament to Give Away All My Property?
You can use this document to give away most of your belongings. However, it won’t be valid for all the property in your estate.
For example, you can’t use a will to give away life insurance, retirement plan assets, pension plan assets, and 401(k) assets. Instead, you must specify a beneficiary for these assets within the plans themselves.
The designated beneficiary for these accounts will override whatever you write in your will.