A will — also called a “last will and testament” — is a legal document that describes how a person wants their property and assets distributed after they die. It is one of the most important documents a person can create, yet more than half of American adults do not have one.
What a will does
A will serves several key purposes. It names the people or organizations that will receive your assets, appoints an executor to carry out your wishes, and can name a guardian for minor children. Without a will, a court makes these decisions based on your state’s laws — which may not reflect your wishes at all.
Who needs a will
Any adult who owns property, has children, or wants to control what happens to their belongings after death can benefit from having a will. It is not just for the wealthy. Even a simple will that directs a modest estate to the right people can prevent family conflict and lengthy court proceedings.
What a will can cover
A will can direct the distribution of real estate, bank accounts, personal belongings, vehicles, and investments. It can also specify funeral or burial wishes and leave assets to charities or organizations.
What a will cannot cover
A will cannot override beneficiary designations on life insurance policies, retirement accounts like 401(k)s and IRAs, or jointly owned property. Those assets pass directly to the named beneficiary regardless of what a will says.
How a will becomes legally valid
Requirements vary by state, but most states require that the person making the will — called the testator — meet all of the following conditions:
- Be at least 18 years old
- Be of sound mind at the time of signing
- Sign the document in the presence of witnesses
- Have the document witnessed by at least two adults who are not beneficiaries
Some states also recognize handwritten wills, called holographic wills, though these can be more easily challenged in court.
What happens to a will after death
After a person dies, their will typically must go through probate — a court-supervised process that validates the document and oversees the distribution of assets. Probate can take anywhere from a few months to over a year depending on the size of the estate and the laws of the state.
Will vs living will — what’s the difference
A will and a living will are two very different documents. A will takes effect after death and directs asset distribution. A living will — also called an advance directive — takes effect while a person is still alive but unable to communicate, and directs medical treatment preferences. Both are important parts of a complete estate plan.
Helpful Tools for Will and Estate Planning
Once you have created your will storing it safely is essential. A fireproof document safe or fireproof document bag protects your original will and other important estate planning documents from fire water and theft. Many estate planning attorneys recommend keeping originals in a secure home safe with copies stored separately.
These books are highly recommended for anyone beginning the estate planning process:
- Nolo’s Plan Your Estate by Denis Clifford — one of the most comprehensive plain-English guides to wills trusts and estate planning available
- Get It Together by Melanie Cullen — a practical workbook for organizing your important documents wishes and end of life instructions in one place
- The Complete Guide to Planning Your Estate — a step by step resource for understanding your estate planning options without legal jargon
Key terms to know
- Testator — the person who creates the will
- Executor — the person named to carry out the will’s instructions
- Beneficiary — a person or organization that receives assets
- Probate — the court process of validating a will and distributing an estate
- Intestate — the legal term for dying without a valid will
- Holographic will — a handwritten will signed by the testator
Sources
- USA.gov — Estate Planning
- American Bar Association — Public Resources
- National Institute on Aging — Getting Your Affairs in Order
This article is for general informational purposes only and does not constitute legal advice. Laws vary by state. Consult a licensed attorney for guidance specific to your situation.