Last Will and Testament: What It Is, How to Create One
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According to a 2022 Caring.com survey, 63% of Americans believe that you should have a will by the age of 55. But in reality, less than half of the respondents over the age of 55 actually have one.
While it’s true that planning for the end of life is seldom pleasant, wills are critically important documents. They can ensure you've taken care of those you've left behind, and provide clear direction to your loved ones during a stressful time.
What is a will?
A will, sometimes also called a last will and testament, is a legal document that details how certain assets should be managed upon a person’s death. This can include instructions for the distribution of property, guardianship of children, administration of charitable donations and more. Wills make it easier for beneficiaries to divide up belongings and fulfill final wishes.
How a will works
A last will and testament lists how certain assets and bequests should be distributed upon a person’s death. It’s typically written by the person leaving behind the assets, sometimes with the assistance of a professional, such as a lawyer or financial advisor.
Wills can govern the distribution of things like houses or real estate, cars, jewelry, bank accounts and other items, but they do not generally govern assets that are held jointly with another party (e.g., a home purchased with a sibling) or accounts that have a named beneficiary (e.g., a retirement plan or investment account).
The person creating the will names an executor, a trusted third party who is charged with overseeing the will’s administration. Importantly, establishing a will does not mean that you avoid probate, a legal process involving the state. But having a will is critical to the probate process, as it provides the executor, the state and your heirs clarity regarding to whom your assets will go.
Why do you need a will?
If you die without a will — the legal term being "intestate" — your property will be distributed according to your state's laws.
In Texas, for example, intestacy laws give your property to your closest relatives, starting with your spouse, then your children, before branching out along your family tree. This process could end with a distant relative you didn't know — or worse, knew and disliked — taking ownership of your prized possessions. Still worse, it could lead to your family becoming entangled in costly legal wrangling over your estate. In either case, the final outcome could be far different from what you wanted.
Types of wills
There are several different types of wills and your state's legal requirements dictate their validity.
Simple or testamentary will
A legal document that specifies how to allocate your property upon your death.
Joint will
A legal document that blends the individual wills of more than one person because their wishes are the same. Example: A spouse leaving everything to their surviving spouse and then to their children.
Handwritten or holographic will
A will that has not been witnessed or notarized, but is written by hand. It may not be valid in every state. Example: A soldier scribbles their wishes on pen and paper during a dangerous situation.
Oral or nuncupative will
A will that is verbally expressed to witnesses, rather than written down. It may not be valid by state. Example: A terminally ill patient who is unable to write and instead states their wishes aloud.
Living will
Unrelated to any of the wills defined above, a living will outlines your preferences for medical care in the event you are unable to speak for yourself.
Pour-over will
A legal instrument that is used alongside a living trust as a contingency. It "pours" all estate assets over to the living trust in case assets were not transferred beforehand. Example: An asset wasn't properly titled to the trust, but the pour-over will take care of moving it over.
» What works best for you? Know the differences between wills and trusts
How to set up a will
Despite what you may think, every adult needs a will, regardless of age, wealth or family circumstance. It's not hard to create a will, but there are many details to consider during the process.
1. Decide if you need help
DIY: If you're a do-it-yourselfer, you may want to apply that philosophy to your final wishes. You can find many will templates and will-writing programs online. People with smaller estates or relatively uncomplicated financial situations and those looking to avoid legal expenses often go this route.
Work with a professional: If you have a more complicated estate, you should consider at least setting up an initial consultation with an estate attorney or wealth advisor who can help with estate planning. You may also want to consider a trust, which can help reduce your estate taxes in some cases. Keep in mind that you don’t need to choose between a will or a trust; many people end up using both.
Combine forces: Hybrid will writing also is an option. Here you start with an online approach and, if you discover you have more questions or a complicated situation arises, you work with an attorney. Since you created the document's foundation, it could lessen your legal costs.
» Need some help? Check out our roundup of the best wealth advisors
2. Account for all possessions
Everything you own, from tangible property to financial assets, is part of your estate. A will documents your wishes for how those assets will be dispersed, so it’s important to account for everything that comprises your estate to ensure that nothing is left out.
Even if you intend to leave your entire estate to a single heir, creating a comprehensive inventory is an important safeguard. Accounting for all of your possessions will ensure that none of them — for example, an old workplace retirement account that lists your ex-spouse as the beneficiary — ends up in the wrong place.
» More on accounting for your possessions: See the NerdWallet estate-planning checklist
3. Determine distribution
Talk with family and friends to learn who would most appreciate certain belongings. You don't have to be overt or morbid in such conversations. The point is to get a feel for what would be a cherished gift to a loved one and what would not. Then record which items should go to whom.
Be specific about who gets what, but avoid getting too personal about your bequest decisions in your will. Since it's a legal document, many attorneys caution that it should contain just the language essential to convey your wishes. If you want to elaborate on your choices, leave a separate letter to your survivors. There you can explain, for example, that you left your son Joe less than his siblings because you had given Joe more financial help over the years.
Be sure to consider beneficiaries listed on assets such as bank accounts, life insurance policies and retirement plans. Beneficiary designations overrule the wishes outlined in your will. Avoid conflicts by changing your beneficiaries as needed.
4. Think about your children
If you have minor children, you will need to decide who will take care of them once you're gone. This means naming a guardian for the kids in the event that both you and the other parent are not able to care for them. If you don't appoint a guardian, the court will have to appoint one without your input.
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5. Name an executor
This person makes sure your will is carried out, so choose an executor carefully. A neutral party rather than a family member generally is a better idea, if for nothing more than to preserve family harmony during a difficult time. Make sure your executor is a responsible person and has enough time to devote to the task.
If you're concerned about imposing on a family member or friend, you could name your attorney or an institution such as your bank as the executor of your will.
» How does your executor distribute your estate? Learn about the probate process
6. Factor in fees
If your executor is an institution, fees likely will be involved. The same is true if an attorney handles your will. If you select a friend or family member, you'll need to decide whether that person will be paid for their services in handling your last wishes. If so, you must determine how much.
7. Make your will official
Sign your will in front of at least two witnesses — you may also wish to have a notary on hand to verify the process — and store a hard copy in a safe place. This could be a fireproof safe in your home or office or a bank-safe deposit box. Be sure to back up the digital version, too.
Let your spouse, executor or a trusted friend know where your will can be found. In some states, you can file a signed will with the probate court. It will remain there until it's time for your family and court to address your final wishes.
8. Update as needed
As your life and your heirs’ lives change, you may want to change your will. Did you sell an asset you had planned to leave to a child? Decide what you'll bequeath instead. Did a potential heir die before you? Choose a new recipient for the items you planned to leave to him or her.
Don't put off such updates. The court and your executor can't confirm your intentions unless you’ve put them down on paper.
Estate planning resources
Need some more help? Learn more about estate planning below.
Kay Bell contributed to this article.
