Creating Your Last Will and Testament

A last will and testament, commonly referred to as a will, is a document that provides instruction as to how you want your assets to be passed along to your heirs when you pass away. Your will may also designate the person who you want to serve as administrator or executor of your estate.

  • Among the many possible provisions you may incorporate into your will, a will may also include provisions that:
  • Describe your preferred funeral arrangements;
  • Address possible claims by unknown heirs, such as possible illegitimate children;
  • Attempt to limit the contest of your estate plan by your heirs;
  • Contribute part or all of your estate to charity, churches, or causes that you support;
  • Designate a guardian for your minor children;

A will may reduce or eliminate the need for court supervision of the distribution of estate assets. It may also waive bond requirements for the administrator or executor, allowing a person whom you trust to administer your estate without having to post a surety bond with the court.

Your will does not direct the distribution of assets that have been conveyed into a trust, or similar estate planning instrument. It also does not affect survivorship or beneficiary designations on financial instruments, such as bank accounts, insurance policies, or retirement accounts.

Why You Should Have a Will

Even if you believe that you have a complete estate plan, with most of your assets to be passed to your heirs through a trust, and with your having named beneficiaries to your insurance policies and retirement accounts, your complete estate plan should include a will.

Your will may direct the disposition of your day-to-day belongings, personal property and vehicles that are not convenient to hold in trust. More importantly, your will can provide a safeguard in the event that an asset is overlooked when you plan your estate, or is not properly conveyed into a trust.

Many people who use trusts as part of their estate plan include a pour over provision in their will, instructing that any assets that remain in their estate following any specific bequests be conveyed into and distributed through their trust. Where the trust is the principal instrument for distribution of assets, a pour-over provision ensures that any assets not previously made part of the trust are distributed as you intend.

No matter what you provisions you include in your will, it will not change the distribution of assets that are distributed outside of the probate process. For example, if you have an insurance policy or annuity which specifies a beneficiary, that beneficiary will receive the proceeds upon your death even if you designate a different beneficiary in your will

What is Intestate Succession

In the absence of a will, your estate will be distributed according to your state's laws of intestate succession.

Although intestate succession laws usually do a decent job of guessing how most people will distribute their assets upon death and minimizing the amount of litigation that might otherwise result, the one-size-fits-all approach is almost never a perfect match, and does not consider such issues as:

  • Your wish to contribute some of your assets to charity;

  • Your designation of a person to care for your minor children or their assets;

  • Your wish to leave assets to non-relatives, including stepchildren;

  • Sentimental value; or

  • Your desire to keep certain heirlooms within the family.

It is thus best to create a will that identifies your intended heirs and the gifts that you intend them to receive.

Restrictions on Disinheriting an Heir

Every state has laws that restrict the ability of a spouse to completely disinherit the other spouse and, in some states, their children. Some states have broader laws that restrict disinheritance.

It is important to understand the laws of your state when drafting your will, and to make sure that your plans won't be disrupted by legal restrictions on inheritance and disinheritance. It is also important to consider that disinheriting an heir may inspire a will contest. An estate planning lawyer can guide you through the law and issues, to minimize the chances of problems when your will is eventually probated.

Legal Terms Used in Wills

It is helpful to know a few basic terms when drafting a will:

  • Beneficiary - A person or group designated to receive an inheritance or distribution pursuant to the terms of your will.
  • Testator - The testator is the person who creates and executes a valid will. You are the testator of your own will.

  • Testamentary Trust - A testamentary trust is a trust that is created by a will such that estate assets can be managed and distributed by a trustee, rather than being immediately distributed to the beneficiaries of the estate.

  • Pour-Over Will - A pour-over will directs that, after expenses are paid, some or all assets of the estate be conveyed into an existing trust.

  • Holographic Will - A holographic will is a will that is written entirely in the handwriting of the testator. In some jurisdictions a holographic will may be probated once it is authenticated, even if not witnessed. However, in other jurisdictions a holographic will is be inadmissible unless it satisfies all of the legal requirements applicable to wills in general, and it is thus best to always have a will properly witnessed.

  • Self-Proving Will - A self-proving will includes an affidavit that renders the will self-authenticating, meaning that it is presumed valid and admissible into probate.

Working With an Estate Planner

Although a simple will is relatively easy to create and execute, many people benefit from using professional estate planning services.

  • An estate planning professional can help you figure out which of your assets and property won't be covered by your will, and help you provide for those assets to pass in accord with your wishes.
  • A professional can also help you determine what taxes will be owed by your estate (including such mundane tax expenses as your last year's income taxes), and what expenses will be associated with the administration of your estate, to help you make sure that you don't end up with any unfunded bequests.

An estate planning professional can also advise you about other estate planning tools, such as a trust. If you create a trust, the professional may help ensure that assets are properly transferred into the trust.

Execution of a Will

To ensure its validity, a will must be signed in the presence of at least two witnesses. Many people also sign a will in the presence of a notary. When signing a will in the presence of a notary, the testator and all witness should appear before the notary, and sign the will at the same time.

In most states, a self-proving affidavit may be appended to the will. When that affidavit is properly executed the will becomes self-authenticating, meaning that the will is presumed valid and admissible into probate without further proof of its authenticity.

Will Forms

We provide a number of simple will forms for your convenience:

We also provide example self-proving affidavits, an addendum that may be added to a will to facilitate its introduction into probate. For more information on estate planning, please see this overview of the estate planning process.

Copyright © 2003 Aaron Larson, All rights reserved. No portion of this article may be reproduced without the express written permission of the copyright holder. If you use a quotation, excerpt or paraphrase of this article, except as otherwise authorized in writing by the author of the article you must cite this article as a source for your work and include a link back to the original article from any online materials that incorporate or are derived from the content of this article.

This article was last reviewed or amended on May 7, 2018.