Key Takeaways

• A last will and testament is a legal document that states how a person wishes to distribute their assets upon their death.
• Although requirements vary by state, usually your will needs to be in writing, signed by the testator, and witnessed by at least two other people.
• If you die without a will, your state’s laws will dictate how to distribute your assets, and your estate may have to pay a death tax.
• Using an attorney to draft your will can end up costing more than $1,000. If you’re looking for a more affordable option, will creation services are available online. LegalZoom starts at $99.

One of the most important estate planning tools is a last will and testament, often referred to as a “will.” In a will, you state where your assets should go when you die and, sometimes more importantly, where they shouldn’t go. Whether you choose to leave your assets to your loved ones or support your favorite cause, you should have a will.

In this article, we’ll explain what a last will and testament is, the benefits of having one, the different types of wills you can create, and how to create one. We’ll also give you a list of helpful estate planning terms and address frequently asked questions about beginning the estate planning process.

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What is a last will and testament?

A last will and testament is a legal document that allows a person to plan how to distribute their assets after they die.

When someone dies, their assets usually go toward funeral expenses and probate court fees. Then, if the person has any outstanding debts, the executor uses assets from the estate to settle them.

What happens to the rest of someone’s property after that? This is where a last will and testament can be helpful. It will give your loved ones guidance on what to do with your remaining assets.

Benefits of creating a last will and testament

April M. Townsend, Esq., is an estate planning attorney based in Pennsylvania with more than 12 years of experience. Townsend said that, “creating an estate plan, including a will, offers significant advantages and peace of mind. By taking these steps, you gain control over how your property is divided after [you die], ensuring your wishes are followed.”

Having a last will and testament in place for when the time comes makes this process easier and less expensive. Your will tells the court exactly what to do with your belongings, so there’s less for the court to sort through. Less work for the court means your assets will be distributed quicker, and you’ll pay less in administrative and probate costs.

Without a will, all your belongings would be distributed according to your state’s “intestacy” laws. Intestacy refers to dying intestate, or without a will. The biggest problem with intestacy is that state laws won’t take into account your preferences on how you want your assets distributed. Close family members and estranged family members can potentially have access to the same amount of your estate.

For example, in New Jersey, if you die without a will, your spouse is entitled to your entire estate—even if you were separated but not yet divorced. ^[1] Mercer County. Administration of Estate (No Will). Found on the internet at https://www.mercercounty.org/government/county-surrogate/administration-of-estate-no-will. That means if you want to leave something behind for your children, siblings, or parents, they won’t get anything unless you have a will that provides for them.

Helpful hint: Intestacy laws don’t provide a means for you to appoint a legal guardian for dependents. If you’re a caregiver for any minor children or pets, you’ll need a will to arrange their support. Otherwise, the court will appoint a guardian for those who need one, without considering your preferences.

Types of wills

You can choose from five main types of wills when creating your own:

• Simple will: A straightforward will lists your assets and beneficiaries. You can easily create your own simple will online.
• Living will: This is different from a simple will in that it doesn’t deal with your assets or how the court will distribute them upon your death. Instead, a living will gives instructions for your medical care and other end-of-life decisions, such as whether you want medical staff to use life-extending measures.
• Joint will: This is a will that used to be common among spouses where both parties agree to grant all their assets to the surviving spouse. With a joint will, once one spouse dies, the surviving spouse can’t change the terms of their will. This restriction makes joint wills less popular—there are other options that provide more freedom for the surviving spouse.
• Testamentary trust: This is a will that creates a trust that won’t take effect until after your death. A testamentary trust is commonly used to provide support for minor children over a long period of time.
• Holographic will: This type of will is only recognized in 28 states. ^[2] Trust & Will. What is a Holographic Will (& Why It’s Not the Best Choice). Found on the internet at https://trustandwill.com/learn/holographic-will It must be handwritten and signed by the testator—it can’t be typed or written by someone else. ^[3] Cornell Law School Legal Information Institute. Holographic will. Found on the internet at https://www.law.cornell.edu/wex/Holographic_will Since the handwriting in the will matches the handwriting in the signature, most states that recognize these types of wills don’t require additional signatures from witnesses. This raises a potential for mistake or fraud, so they’re commonly contested in probate court.

How to create a last will and testament in six steps

With all the free resources available online, most people won’t need estate planning attorneys to craft a will for them. Creating your own will is a relatively straightforward process that can save you time and money.

Since state law governs wills, each state has its own requirements to create a will. Still, most of these state requirements boil down to three conditions: Your will must be in writing, signed by the testator, and witnessed by at least two people. We’ll explain how to satisfy these minimum requirements and create the best will for your estate planning needs.

Step 1: Make detailed property records

Since your will contains a plan for how you want to distribute your assets, you’ll need to make a list of all the property you own. When compiling these property records, consider the following:

• Land or real estate
• Business stocks or bonds
• Cash in bank accounts
• Valuable personal property, like jewelry, vehicles, or art

If you’re worried about forgetting to list some of your assets, you can include a residuary clause ⓘA residuary clause identifies a person or institution that receives any assets that aren’t accounted for in your will. This is important to have if you don’t want state law to distribute any remaining assets. in your will. A residuary clause works as a catchall for the rest of your property, so the executor ⓘAn executor, also known as a personal representative, is the individual responsible for carrying out the instructions left in someone’s will. knows what to do with any belongings you didn’t specifically name in your will.

Another thing to keep in mind is some assets may already have designated beneficiaries, like life insurance policies or qualified retirement plans.

Helpful hint: When listing all your assets, don’t forget to include any debts you might have (for example, unpaid taxes, credit cards, student loans, or mortgages). Usually, if a debt is unpaid at death, the estate is responsible for paying it. This will give you a better idea of how much of your estate you’re leaving for your beneficiaries.

Step 2: Name an executor

An executor, or personal representative, is someone legally obligated to administer a person’s estate. In other words, an executor is the person responsible for following the instructions you left in your will.

To be an executor, you have to be at least 18 years old and of sound mind. You may need to have additional qualifications depending on your state’s rules. ^[4] Cornell Law School Legal Information Institute. Holographic will. Found on the internet at https://www.law.cornell.edu/wex/Holographic_will

When naming your executor, try to choose someone you’re close with, so they truly understand your intentions during the probate process. You should also consider naming someone healthy who will likely live long enough to take on this role. It’s a good idea to name a “successor executor,” or a backup executor, in case your first choice is unavailable. Being an executor is a lot of responsibility, so make sure you choose someone who is able to address estate matters quickly and efficiently.

Step 3: Add beneficiaries and designate property

A beneficiary is a person designated to receive something from an estate or trust. Simply put, a beneficiary is any person you’re leaving property to in your will. You can name any person or institution (such as a charity) to be a beneficiary in your will. Once you’ve named your beneficiaries, you’ll have to decide what property they should receive.

A general bequest is when you want to leave behind some money from your estate to a beneficiary. For example, if you want to make sure your child is well-supported after you’re gone, you can make a general bequest that designates a certain amount of money from your estate to go directly to that child.

A specific bequest is when you want to leave behind a particular piece of your property to a beneficiary. For example, if you want to leave your stamp collection to your nephew who collects stamps, you can make a specific bequest.

Another useful type of bequest is called a contingent bequest. This allows you to put conditions on whether a beneficiary receives property from your will. For example, if you want to encourage your grandchild to go to college, you can make a bequest to your grandchild on the condition they go to college. If your grandchild doesn’t attend college, they won’t receive that bequest, and it will return to your estate.

Step 4: Formalize your will on paper

All states require you to put your will on paper. This memorializes your intentions, so your executor can refer back to it during the probate process.

Online templates can help you format the document correctly, or you can use an online will maker service that will generate the correct document for you. While you can certainly print these documents yourself, if you are looking for a more convenient option, all LegalZoom packages include free printing and shipping of one set of estate planning documents.

Helpful hint: Some people like to include letters for their loved ones with their will. The executor will deliver these letters of love and support upon your death. It’s a thoughtful way to say your final goodbyes and give your loved ones closure.

Step 5: Sign the document

Once you’re happy with your will, you have to sign the document to make it official.

At least two people must witness you sign the document. After they see you sign your will, they’ll have to place their signatures on the will to prove its authenticity. Only two states slightly modify this requirement:

• Louisiana requires a notary to sign your will in addition to the two witnesses.
• Colorado allows you to have your will witnessed by only one person if the person is a notary.

Helpful hint: Regardless of requirements, getting your will notarized helps to ensure your will holds up in court. You can find a notary at your bank or some FedEx or UPS locations, or you can hire a mobile notary to come to you.

Step 6: Maintain and update the document as needed

While you can keep your last will and testament in a safe place at home, you need to make sure these estate planning documents outlast you. We recommend taking extra precautions, such as using a fireproof lockbox (like this one for $30) or a safe deposit box at the bank.

Some states allow you to file your will with the probate court to ensure the document is safe and available when needed. If you do this, only you, your attorney, and your executor will be able to access the will during your lifetime. But once you die and your case goes through probate, your will becomes publicly available information. If this raises privacy concerns for you, keep in mind that all probate court matters become public record once they’re closed—even if you don’t have a will.

You don’t need to wait for an important life event to create or update a will. Townsend advised that you should “think of your estate plan as a living document. Give it a regular check-up every three to five years, or whenever life’s chapters change.” She added that some examples of changes are:

• Marriage or divorce
• The birth of a child or grandchild
• Financial changes
• Moves
• Evolving legal requirements in your state

You can use something called a codicil ⓘA codicil is an amendment to a will. It allows you to add, subtract, or modify something in your will, without having to create a brand new one. to make changes to your will down the line if you ever need to. A codicil can be used to supplement, modify, or even revoke a will.

All you need to do is write down what you want to change about your will, sign it, have at least two witnesses sign it, and keep it with your original will. After your death, the executor will read and interpret both documents together.

Estate planning terms to know

As you learn about what a last will and testament is, it may be helpful to know what certain legal terms mean.

• The testator is the person who created the will.
• Beneficiaries are individuals or institutions that receive something from the execution of a will. In other words, beneficiaries stand to benefit from the will.
• Adding a codicil to a will updates the will by adding a document at the end rather than rewriting a portion of the will. A codicil can explain, modify, or revoke part of a will.
• A decedent is the term used in estate planning for a person who has died.
• An executor, or personal representative, is the individual responsible for “executing the will,” or facilitating the probate process.
• An estate is anything a person owns at the time of their death. This can include real estate and personal property, like jewelry, vehicles, and other items of value.
• Power of attorney means you’ve given authority to another person to make legal and financial decisions for you if you’re unable to do so.
• A residuary clause identifies a person or institution that receives any assets not accounted for in your will. This is important to have if you don’t want state law to distribute any remaining assets.
• Attach a self-proving affidavit to a will to “prove” to the court the will is valid. Executors must sometimes go through a hearing—potentially requiring witnesses—to prove to the court the will belongs to the testator and is valid. A self-proving affidavit does this automatically, but it’s not an option in every state. Some states consider a valid will to be self-proving, so an additional affidavit isn’t necessary.

Bottom line

For many people, the most important document in their estate plan is their last will and testament. This document will give you a say in how an executor should handle your assets upon your death. Without a will, your estate will be subject to state-created intestacy laws, which don’t take into account your preferences. You also won’t be able to make specific arrangements for your spouse, children, pets, or anyone else you care for without a will.

To create a valid will, you’ll have to memorialize your final wishes by putting it on paper. You can do this by using an attorney, an online will creation service, or following templates you find online. An attorney is the most thorough option, but it’s also the most expensive. Following templates online is usually free, but there’s the risk of filling out the templates incorrectly. An online will maker service, such as LegalZoom’s estate planning bundles, is a middle-ground that will result in a legally binding document at a lower cost than hiring an attorney. Read our guide to learn how to make a will without a lawyer.

You and at least two other people must sign it to make it a valid will. Your signature will show you intend this document to be your last will and testament. The two other people must sign the document as witnesses to authenticate your signature. Keep your will in a safe place, so your executor can find it when they need to start distributing your assets. You should also make copies of the document and give them to your executor and anyone else you think should have one.

Additional estate planning resources

Learning about estate planning tools, like the power of attorney, can be intimidating, but it’s an important part of safeguarding your affairs. For more resources on how to begin preparing for your future, check out NCOA’s AgeWell Planner. If you’re taking care of a loved one, read our advice about managing someone else’s legal, financial, and medical decisions. And be aware of estate recovery, how it works, and how it can affect you or a loved one.

Plenty of resources offer affordable legal aid. Also, nonprofit organizations, such as the Veterans Legal Institute, will provide pro bono legal assistance to current and former service members.

Frequently asked questions

What are the requirements of a valid will?

In general, a legal will is written, signed, and witnessed, though each state can have its own specific requirements.

“In writing” means the will isn’t verbal. The paper makes it formal. The testator, or person making the will, must also sign the will. This shows approval of the asset distribution plan and certifies this is the last will and testament. Finally, you must have at least two witnesses when you sign the will. These witnesses attest, or confirm, the testator was of sound mind when they were creating their will and the testator’s signature is their own. The witnesses must then sign the will to make it valid. Witnesses can’t be beneficiaries.

What is a last will and testament?

The most simple definition of a last will and testament is a legal document that records how a person wants to distribute their assets upon their death.

In estate planning and probate law, the ultimate goal is to mirror the testator’s intentions and dispose of their assets in the manner they desire. Your last will and testament formalizes these intentions on paper, so the executor can follow them as closely as possible when the time comes.

How much does a will cost?

If you’re drafting your will on your own, you can create one for free or use an online will making service, which usually costs around $40–$300.

If you’re hiring a lawyer to draft your will, you can expect to pay, on average, anywhere from $300–$1,000. This cost depends on the complexity of your estate.

Do I need an attorney to create a last will and testament?

No, you don’t need an attorney to create a last will and testament. You can create your last will and testament by using online resources.

You can distribute your assets through many different ways while minimizing your risk and tax liability. If you have a complex estate plan, a lot of valuable assets, or just want to ensure your will is completely correct, you can hire an estate planning attorney.

Can I make a last will and testament online?

Yes, you can create your last will and testament online.

You can either find will templates online and create one yourself, or you can have an online service make your will for you. Some services will even connect you with an estate planning attorney and offer continued support in case you need to update your will down the line. We have tested and reviewed these online will creation services, so you can choose the best one for your needs

What’s the difference between a last will, a living will, and a living trust?

Your last will is a way for you to decide what happens to your assets after you die. A living will, also known as a health care directive, is a statement of your wishes regarding medical treatment in circumstances where you’re no longer able to make decisions or communicate effectively. A living trust holds your assets until a predetermined time and provides instructions for management and distribution.

Unlike a living will, your last will doesn’t express what medical treatment you want to pursue if you’re ever incapacitated—unless you included a medical power of attorney in your will. It’s also unable to hold assets for you, unlike a living trust.

What kind of property should I not include in my will?

Typically, you should avoid including property that you’ve already assigned to someone, like:

• Life insurance or annuity proceeds
• Retirement plan proceeds
• Transfer-on-death property
• Property held in living trust
• Property held with a right of survivorship

The most common example is life insurance proceeds. When you get a life insurance policy, you have to designate a beneficiary to receive the policy payout. By including the proceeds in your will, you can create a situation where you’ve designated two different people to receive the same property. This usually leads to the two beneficiaries going to probate court. Even if you name the same beneficiary in both documents, you’ll have to make sure both documents match if you ever want to make any changes in the future.

Have questions about this review? Email us at reviewsteam@ncoa.org.

Sources

1. Mercer County. Administration of Estate (No Will). Found on the internet at https://www.mercercounty.org/government/county-surrogate/administration-of-estate-no-will.
2. Trust & Will. What is a Holographic Will (& Why It’s Not the Best Choice). Found on the internet at https://trustandwill.com/learn/holographic-will
3. Cornell Law School Legal Information Institute. Holographic will. Found on the internet at https://www.law.cornell.edu/wex/Holographic_will
4. North Carolina Administrative Office of the Courts. Estate Procedures for Executors, Administrators,Collectors By Affidavit, and Summary Administration. Found on the internet at https://www.nccourts.gov/assets/documents/forms/e850-en.pdf?VersionId=wAfy5o3sqw7oCN0qFSPp5N1aWnKA7nNK