The last will and testament leaves a record of how you want your property to be distributed after your death. Keep in mind that the last will is not the same thing as a living will, which details how you wish to handle end-of-life medical care.
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A last will and testament is a binding legal document that determines how your property will be disbursed after your death. This can be both real property (land, buildings, etc.) and personal property (furniture, jewelry, vehicles, stocks, other savings, etc.), and in today’s digital age, it can even include online assets such as social media accounts, cryptocurrency, or online shopping accounts.
This property will typically be distributed to your children or spouse. However, you can also will your wealth to a charitable foundation or other private organization. Last, you can set aside a portion of your money to cover funeral expenses.
Before we go any further, there are a few legal terms that you’ll need to understand:
Note that a will does not need to address life insurance. Your insurance will pay out to your insurance beneficiaries as soon as they make a claim.
1. Choose Will Type
When it comes to will types, you will have several options to choose from:
Option 1: Create the will yourself
It is possible to handwrite the whole document (such wills are called “holographic“), but this approach is generally not recommended. Although they are cheaper, the disadvantages outweigh the benefits. Holographic wills:
Hence, it is better at least to use fillable will templates, which typically contain most core provisions in proper legalese. Additionally, you can try out our step-by-step builder that will guide you through every possible passage you might want to include. It is also made to take into account the selected state’s law. So, the chance of such a will to be void is minimized.
Option 2: Use the attorney services
You can hire a legal professional to help you create your last will. They will also make sure the document meets every requirement of your state. However, this option is often quite expensive, and the cost often varies based on the attorney and your will’s complexity.
2. Identify Assets
Go through your property and list what you can dispose of in your last will. That’s an important step because not all of your assets might be subject to disposition. If you own something jointly, for instance, an apartment, such property will be transferred to the surviving owner automatically. Digital property can sometimes be difficult to dispose of in a will as the law doesn’t have proper regulation regarding such cases. And, you won’t be able to bequeath any property that you have already designated to someone in a trust, insurance policy, retirement plan, or stocks.
To avoid the hassle of listing every little small thing you possess, designate someone for a residuary estate (or residue). After listing every major asset, include a residuary estate clause that will name the person getting everything you didn’t list. The person will be called a residuary beneficiary.
Another thing to consider is if you live in a community (or marital) property state. Such states are Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin. In those states, half of all assets gained during your marriage will go to your spouse, regardless of what you indicate in your will.
To avoid disputes in the future, before creating a will, review your state’s code and every legal document that can involve your property disposition.
3. Think About People Involved
Below are the main roles you would need to find people for. Even if you’re sure that the person of your choosing won’t mind taking on some of the duties, always ask them to be 100% certain.
Think about how you want your previously listed assets to be distributed. Choose the beneficiaries, those who will inherit your property, and what shares they will get. If you want so, you can choose a charity as a beneficiary. Once you make up your mind, you need to decide who gets what. You can divide your assets in percentages, specify which beneficiary gets what piece of property, or mix the two approaches. To make sure the assets can be identified easily, describe them in great detail.
It is a good idea to provide instructions that explain what to do with your assets if the designated beneficiaries pass away before you. For example, you can include a clause that would make such property be distributed evenly among all other beneficiaries or go to charity.
Choosing an executor requires careful deliberation because this person will be responsible for property distribution and debt settlement per your will’s provisions. Thus, it’s better to choose someone you absolutely trust and, ideally, with a law or business educational background. It is a common practice to choose one person as both the executor and beneficiary. However, if you think there might be quarrels among the inheritors, it might be better to choose a third party for this position.
As a precaution, you can also appoint an alternate executor in case the first one cannot carry out their duties.
Indicate a guardian if you have underage children who will need someone to take care of them in case you pass away. You may also name a guardian even if you don’t have any children but plan to have them in the future. Here are some tips:
You can also assign the same person to take care of your beloved pets, provided you have any.
In most cases, you will have to sign the will in the presence of at least two credible witnesses, who will also sign the document. Check your state’s signing requirements to see how many witnesses you would need. You can’t have someone interested in your estate act as a witness.
4. Consider Any Special Wishes
You can add special requests in your last will. For example, you can include a clause regarding the burial procedure or how your remains should be handled. There are many cases known when people leave unusual requests in their wills, like leaving all their estate to their pets. If you have something similar on your mind, make sure it complies with the local laws first.
5. Fill out and Finalize the Form
You can use the free fillable template available for download on this page or try out the step-by-step builder to make sure you don’t miss anything.
You can also consider making your will self-proving if you want to facilitate the probate. To do that, you will need to attach a self-proving affidavit to your will.
If you still want to add a notary public acknowledgment, it might be better to make your will self-proving as it requires notarization in most cases anyway.
6. Consider Post-creation Measures
Make sure the document is stored in a safe but accessible place. Consider storing your will in a safe or bank deposit box. Another option would be to hand it to an attorney for safekeeping. Write down the information crucial to finding the whereabouts of the will to make sure you or your spouse can locate it if you forget where it is.
You can take another precaution by informing your executor about the will’s location or even providing them with a copy.
For most people, a simple will template will be more than good enough to meet your legal needs. You can download a fillable template on this page. Since state laws have some minor variations in their requirements, we’ve included specialized instructions for all 50 of the United States.
You can also use our free will and testament form builder that will guide you through the entire creation process step by step, and it will help you ensure that you haven’t missed anything vital. As a result, you will get a printable document with all of the information you filled out.
The first step of creating a last will is to type one up. Courts are typically understanding if the language isn’t written in perfect legalese. But because a last will and testament is a legal document, there are a few key points that need to be covered. That’s why it’s easier just to use a last will and testament form. That said, here’s a quick outline of what needs to be covered.
First, the top of the front page should have a header that says “Last Will and Testament of [Your Name].” This makes it clear that you were intentionally writing a will and not just expressing yourself.
The first paragraph should include your name, city, county, and state. This ensures that your will is going to be covered by the rules of your local jurisdiction.
The first clause should state that this is your “last” will, and it overrides any previous wills and codicils that you may have written.
The second clause includes your family members—your spouse and child or children if any. Their names should be mentioned along with child/children’s birth dates. Also, there should be a sentence that you don’t have other living children and no issue of deceased children.
Next, name beneficiaries for your estate. For each beneficiary, include their name, address, and their relationship to you. Along with that, mention property or a percentage of your estate that you leave a certain beneficiary. Remember that you can either distribute your assets equally among all of your beneficiaries or leave a specific amount of assets to specific beneficiaries.
The fourth clause covers debts, expenses, and taxes. It should authorize your executor to pay any funeral costs, estate tax, inheritance tax, and personal debts as soon as possible. It should also authorize them to settle any claims made against your estate.
The next clause is called “Distribution if no survivors”. Here, briefly state what should be done to your property in case none of your beneficiaries survive you.
The next clause, the “Custodianship Accounts”, is also short. It should simply say: “If any beneficiary under this Will is under the age of twenty-five (25) years at the time title vests in him or her, then his or her share shall be retained by an individual selected by my Executor as a custodian for such minor until age twenty-five (25) under the Uniform Transfers to Minors Act.”
The next clause is called the “Omission” or “Disinheritance” clause. Here, briefly state that any family members not named as beneficiaries are being intentionally omitted. In other words, you have left them out on purpose, and not because you forgot.
It’s also a good idea to include a clause about contesting beneficiaries. It should state that if a beneficiary contests any part of or the entire document, their share is revoked and goes to other beneficiaries. This can deter people from suing your estate over their share of your assets.
If you have any dependents, you’ll then want to assign a guardian for them. The guardian should have their name, city, county, and state listed in the will. It is also a good idea to include an alternate guardian in case the first person fails to act or continue to act as such. If you don’t have any dependents, you can skip this section.
In the same clause, you should simply mention: “No bond shall be required of any fiduciary serving hereunder, whether or not specifically named in this will, or if a bond is required by law, then no surety will be required on such bond.” Or, if you want to make the text even simpler, you can write: “No bond shall be required of any guardian named in this Will.”
The next clause assigns your executor. It should include their name, city, county, and state. In this section, it’s a good idea to appoint an alternate executor in case the first executor has passed away or is out of the country when you die.
Then, enumerate the powers of your executor. This clause is fairly long, so we won’t get into too much detail, but it should authorize them to sell your property, rent it out if necessary, and manage your retirement plans, bank accounts, and stocks. It might also authorize them to hire a financial advisor or accountant for an estate plan.
The last clause is called “Miscellaneous provisions”, and it includes the definitions of the terms that might be found ambiguous such as “child”, “issue”, and “my Executor”. As the next paragraph in the clause, include the words: “I confirm that there is no agreement between my spouse and me as to the disposition of our estate upon the death of the second of us to die.” After that, include a paragraph about shipping expenses saying that your beneficiaries shall not be required to pay the expenses connected with the delivery and distribution of the personal property mentioned in your will.
The clause should be ended by words: “IN WITNESS WHEREOF, I subscribe my name…” and include the date when you created it. Don’t forget to add your signature and printed name below the clause.
Now when your part of writing is done, two attesting witnesses should be involved. They have to confirm the fact that it was you who created the will they are now signing and you requested them to act as witnesses. Then, they should mention that they witnessed the moment of you signing the will and both of them were present at the same time. After that, there should be a line: “We now, at the testator’s request, in the testator’s presence and in the presence of each other, subscribe our names as witnesses.”
In the second paragraph of the clause, the witnesses should affirm that you as a testator have met the state law requirements regarding age and soundness of mind and that the will was not procured by duress, menace, fraud, or undue influence.
The last paragraph of the clause should include the date and the place of execution of the will. The ending should be the following: “We declare under penalty of perjury under the laws of the (state) that the foregoing is true and correct,” with witnesses’ names, signatures, and places of residence written below the text.
Next, you need to find two witnesses that you trust to verify your will’s authenticity. Similarly to the executor, the witnesses cannot be beneficiaries of the will. Write your signature and date the will in their presence and have each of them sign it and print their address.
That’s all there is to it. Your will does not have to be notarized. However, if you have an affidavit, the affidavit will need to be notarized. We’ll get to that in a minute.
|STATES||Signing requirements||STATE LAW|
|Alabama||Two witnesses||Alabama Code, Sec. 43-8-134|
|Alaska||Two witnesses||Alaska Statutes, Sec. 13.12.505|
|Arizona||Two witnesses||Arizona Revised Statutes, Sec. 14-2505|
|Arkansas||Two witnesses||Arkansas Annotated Code, Sec. 28-25-102|
|California||Two witnesses||California Probate Code, Sec. 6112|
|Colorado||Two witnesses OR notary public||Colorado Revised Statutes, Sec. 15-11-502|
|Connecticut||Two witnesses||Connecticut Revised Statutes, Sec. 45a-251|
|Delaware||Two witnesses||Delaware Code, Title 12, Sec. 203|
|Florida||Two witnesses||Florida Statutes, Sec. 732.504|
|Georgia||Two witnesses||Georgia Code, Sec. 53-4-22|
|Hawaii||Two witnesses||Hawaii Revised Statutes, Sec. 560:2-505|
|Idaho||Two witnesses||Idaho Statutes, Sec. 15-2-505|
|Illinois||Two witnesses||Illinois Compiled Statutes, Sec. 4-3|
|Indiana||Two witnesses||Indiana Code, Title 29, Sec. 2|
|Iowa||Two witnesses||Iowa Code, Sec. 633.280|
|Kansas||Two witnesses||Kansas Statute, Sec. 59-606|
|Kentucky||Two witnesses||Kentucky Revised Statutes, Sec. 394.040|
|Louisiana||Two witnesses AND notary public||Louisiana Civil Code, Book 3, Article 1581|
|Maine||Two witnesses||Maine Probate Code, Title 18-C, Sec. 2-504|
|Maryland||Two witnesses||Maryland Annotated Code, Sec. 4-102|
|Massachusetts||Two witnesses||Massachusetts General Laws, Sec. 2-505|
|Michigan||Two witnesses||Michigan Compiled Laws, Sec. 2505|
|Minnesota||Two witnesses||Minnesota Statutes, Sec. 2-505|
|Mississippi||Two witnesses||Mississippi Annotated Code, Sec. 91-5-1|
|Missouri||Two witnesses||Missouri Revised Statutes, Sec. 474.330|
|Montana||Two witnesses||Montana Annotated Code, Sec. 72-2-525|
|Nebraska||Two witnesses||Nebraska Revised Statutes, Sec. 30-2330|
|Nevada||Two witnesses||Nevada Revised Statutes,Sec. 133.040|
|New Hampshire||Two witnesses||New Hampshire Revised Statutes, Sec. 551:2|
|New Jersey||Two witnesses||New Jersey Statutes, Sec. 3B:3-7|
|New Mexico||Two witnesses||New Mexico Annotated Statutes, Sec. 45-2-505|
|New York||Two witnesses||New York Consolidated Laws, Sec. 3-2.1|
|North Carolina||Two witnesses||North Carolina General Statutes, Sec. 31-8.1|
|North Dakota||Two witnesses||North Dakota Century Code, Sec. 2-505|
|Ohio||Two witnesses||Ohio Revised Code, Sec. 2107.06|
|Oklahoma||Two witnesses||Oklahoma Statutes, Sec. 84-55|
|Oregon||Two witnesses||Oregon Revised Statutes, Sec. 112.235|
|Pennsylvania||Witnesses are required only in specific cases||Pennsylvania Consolidated Statutes, Sec. 2502|
|Rhode Island||Two witnesses||Rhode Island General Laws, Sec. 33-5-5|
|South Carolina||Two witnesses||South Carolina Code of Laws, Sec. 62-2-502|
|South Dakota||Two witnesses||South Dakota Codified Laws, Sec. 29A-2-505|
|Tennessee||Two witnesses||Tennessee Annotated Code, Sec. 32-1-103|
|Texas||Two witnesses||Texas Statutes, Estates Code, Sec. 251.051|
|Utah||Two witnesses||Utah Code, Sec. 75-2-505|
|Vermont||Two witnesses||Vermont Statutes, Title 14, Sec. 5|
|Virginia||Two witnesses||Virginia Code, Sec. 64.2-403|
|Washington||Two witnesses||Washington Revised Code, Sec. 11.12.020|
|West Virginia||Two witnesses||West Virginia Code, Sec. 41-1-3|
|Wisconsin||Two witnesses||Wisconsin Statutes and Annotations, Sec. 853.03|
|Wyoming||Two witnesses||Wyoming Statutes, Sec. 2-6-112|
Changing your will is the same as creating a new one, including two witness signatures. However, once you’ve changed the will, you’ll want to ensure that the previous will is destroyed along with any copies. For minor changes, you can also create a codicil, which we’ll talk about shortly.
So, why would you want to change your will? There are several life events that are significant enough to merit creating a new will. These include:
In addition to disbursing your personal property, there are a few other matters that you might want to attend to in your will. Moreover, you might want to make minor changes to your will. Here are a few documents that you should continue storing with your last will and testament.
A codicil is a document that specifies minor changes to your will. Instead of writing an entirely new will, you can write a shorter, simpler document to change your final requests.
So, what counts as a minor change? There are no cut-and-dry legal rules. Codicils are typically used to change the executor, update the names and addresses of beneficiaries, or add a new request for a newly-obtained asset such as a new home. Anything beyond that and you should write a new will. You can write multiple codicils. However, if you’ve written more than three or four, consider writing a new will to make things easier on your executor. A codicil has the same requirements as your original will, so make sure to get your two witnesses.
A self-proving affidavit is designed to make it easier for your executor to get your will through probate. With an affidavit, your will is automatically considered valid, and managing your estate will be quick and painless. Without one, proving your will’s authenticity can be burdensome. You’ll also need a stamp from a notary public. Without one, your affidavit won’t be valid. In fact, under Louisiana state law, an unnotarized affidavit will invalidate your entire will.
A living trust allows you to avoid probate by putting your assets in the possession of a trust. A trust is a separate legal entity and is governed by a manager, typically you. Upon your death, the trust’s assets will be disbursed to your heirs without the need for probate. That said, it’s still a good idea to have a simple will that covers personal items that are not owned by the trust.
A living will also called a health care directive, states your wishes regarding end-of-life medical treatment and life-prolonging medical procedures.
A person who dies without a will has died “intestate” in legalese. In this case, the law has provisions to distribute your assets. Creating a will allows you to determine what individuals will receive ownership of your funds and under what conditions. Depending on your personal circumstances, this could mean a spouse, parents, children, siblings, or even aunts, uncles, nieces, and nephews.
If you have no living relatives, your entire estate will go to the government. So even if you’re truly alone in this world, you might want to create a will to leave your assets to charity.
Depending on your location, the rules on intestate inheritance vary slightly. However, the typical rule is that your closest living relative gets the bulk of your assets. If you’re single and childless, your money will go to your parents if they’re still living. If not, it will go to your siblings. If not, it can go to more distant relatives. The exception to this is if you’re single with children, in which case your estate will go to your children. If any of your children have died before you and left children of their own, your grandchildren will receive their parent’s share.
If you’re married, things get a bit simpler. If you’re married and have children, your entire estate will go to your spouse. The exception is if you have children from any previous spouses, in which case half of your money will go to those children. If you don’t have children, any community property – which means that it’s jointly-owned – will automatically go to your spouse. Your own separate personal property will be divided between your spouse, parents, and siblings, if any are still living.
Things get a bit stickier when you’re in a domestic partnership. If your state recognizes domestic partnerships, the same rules would apply for married couples. If your state does not recognize domestic partnerships, they may get nothing at all, so be certain to check your local laws.
The most devastating effect of an intestate death happens to couples in relationships that are not legally recognized. In that case, in the absence of a will, your surviving partner will receive nothing whatsoever.
Along with your will, you should include any other estate planning documents that you’ve created. To begin with, these include your living trust and/or living will, which we’ve already discussed. However, there are a few other things that you should also include.
First off, you’ll want a power of attorney form for physical and mental incapacitation. This designates a person who can make financial or medical decisions on your behalf in the event that you are unable to do so. You’ll want two of these, one for finances and one for health care. Make sure that this person is someone who’s in agreement with you and will manage your affairs in accordance with your wishes.
Another important form is a statement of desire. This document is not legally binding, but, provided you trust your executor, you can count on them following it. It allows you to state what you want to be done with your remains. Tell them what kind of funeral ceremony you want and whether you want a burial or a cremation.
Finally, an information sheet can be immensely helpful. Information on any email accounts, online usernames and passwords, financial account numbers, insurance policies, credit cards, vehicle loans, and mortgages should all be included here. If you owe money, explain how you intend to make payment. Make a list of any safe deposit boxes, storage units, or other locations where you store your assets. It’s also a good idea to provide contact information for friends and relatives who should be notified of your death.
In the US, any mentally competent adult can write a will. As we’ve already mentioned, there are a few technical requirements that need to be met, but beyond that, there are no further requirements. You don’t have to register with any government agency or court. However, some states allow you to do this to make the probate process easier. For most purposes, it’s enough to keep your will in a safe place and to make sure that your executor knows its location.
In most cases, you can write your will for free. There’s no legal requirement for attorneys to oversee the creation of a will. For the majority of people, basic free wills templates or software will get the job done. That said, estate planning lawyers are well-equipped for handling complex situations such as people with many investments or people who own companies. In those circumstances, it might be worth the cost of getting advice from a professional law firm.
Simply put, you’ll want to think about all of your assets and who you want to leave them to. You’ll also need to consider any debts that you may have. Your heirs won’t be responsible for paying them, but your estate will have to pay them before paying your beneficiaries.
In addition, if you have minor children, consider who should be their guardian and look out for their interests after you’re gone. Needless to say, this comes with a lot of responsibilities, so you’ll want to talk to this person in advance.
Similarly, the duties of an executor come with significant responsibility. It’s a good idea to talk to this person about any concerns before you name them as your executor.
Finally, think about any unique considerations that you may have to deal with. For example, if you’re a caretaker for elderly loved ones or a disabled adult child, you’ll also need a guardian for that person.
Regardless of where you die, your last will stays legally binding. If you die out of state, the local police will notify your next of kin. If you die overseas, the local police will notify the American embassy, which in turn will notify your next of kin. That said, your next of kin will be responsible for any transportation expenses involved with returning the body.
It depends. If the person is still alive, a will is considered a private document. The only way to see it is to ask the person who wrote the will, and no one can force them to show it. If the person is already dead, the will remains private until it has been filed at the probate court. At that time, it becomes a public record. Most probate courts now post their records online.
|Related documents||Do you need to create it along with the last will?|
|Codicil||Yes, if you want to make one or several minor changes to your will.|
|Self-proving affidavit||Yes, if you want to facilitate the probate.|
|Living will||Yes, if you also want to state your wishes regarding the end-of-life medical treatment and life-prolonging medical procedures.|
|Living trust||Yes, if you want to avoid probate by putting your assets in the possession of a trust.|