Most people know that they should have a will, but many don't know what a will is and how it works.
What is a will? A will, sometimes called a "last will and testament," is a document that states your final wishes, including how you want to distribute your property. It is read by a county probate court after your death, and the court makes sure that your final wishes are carried out.
What a Will Does
Most people use a will to leave instructions about what should happen to their property after they die. What else is in a will? You can also use a will to:
You shouldn't try to use a will to:
- put conditions on your gifts ("I give my house to Susan if she finishes college")
- leave instructions for final arrangements (such as funerals, burials, or cremation)
- leave property for your pet, or
- make arrangements for money or property that will be transferred another way, outside of probate (such as property in a trust or a retirement account for which you've named a beneficiary)
To learn more, read What a Will Won't Do. If you want to do any of these things, get help from a lawyer.
What Are the Legal Requirements of a Will?
There are very few legal requirements for wills. To make a will in any U.S. state, you must:
- know what property you have and what it means to leave it to someone after your death. Legally, this is called having "capacity" or being "of sound mind."
- sign the document, and
- have the document signed by two adult witnesses.
While you don't need to get your will notarized, you may make a notarized self-proving affidavit that accompanies your will. This additional step will make the probate process faster and easier for your inheritors.
Types of Wills
Wills can vary in their exact purpose, form, and structure. For example:
- The most basic or simple will gives instructions on who should inherit which property, names an executor to help carry out your wishes, and makes guardianship arrangements if you have any minor children.
- A joint will (one will for a married couple) tries to bind both spouses to one set of wishes, but is not valid in some states, and is usually discouraged now by lawyers.
- A holographic will (a handwritten, unwitnessed will) is legal in some states even though it doesn't satisfy the typical legal requirements of a will (see above), but even then should only be created in emergency situations where witnesses are not available.
- A pour-over will is a very common accompaniment to a living trust, and is used to capture any property that was unintentionally left out of the living trust.
How to Write a Will
You can hire a lawyer to write a will for you, or you can write a will yourself using a reputable service.
You can make your will (and other estate planning documents) quickly and easily, using Nolo's WillMaker.
There are no magic words that must be used to create a will. The best advice for writing your own will is to find a good will writing tool to help you. It should help you use clear, unambiguous language to accurately describe your wishes. It should also explain your options and help you decide what to include in your will. For example:
- Do you want to name several levels of executors?
- Do you want to name more than one executor to work together?
- Do you want to name guardians for your children or their property?
- Do you want to create a trust for your children, so that they receive your property when they're older than 18?
And a good will-making product will help you know when you should see a lawyer for help with writing your will. For example, you should talk to a lawyer if you:
- want to disinherit your spouse or child
- are worried that someone might challenge your will
- want to control what happens to your property long after your death, or
- are worried about estate taxes.
If you prefer to create a will using the guidance of a book, try The Quick & Legal Will Book, by Denis Clifford (Nolo).