Protect Your Family With a Will

Last Will and Testament FAQ

• What Are the Requirements for a Will to Be Valid?

  • Legal requirements vary between states, but generally, all wills require the following:

    • Age: You must be at least 18 years of age. In some states, legally emancipated minors and underage military service members are allowed to draft enforceable wills.
    • Testamentary intent: The document must clearly state that it is a will. A letter telling your best friend you want to give them your car is not a will unless you start it with, “This letter is my last will and testament" and follow all requirements to create a valid will.
    • Mental capacity: Testators must be of sound mind to draft an enforceable will. “Sound mind" means you are aware that you are preparing a will and of its consequences. This standard is relatively loose; even those who have dementia or Alzheimer's can be sound minds if they are lucid at the time of the will signing.
    • Signing: You must sign the will and do so without coercion and duress. If you are physically unable to sign, either make a mark (“X" is a signature) or instruct someone else to sign for you. However, that individual cannot serve as a witness.
    • Witnesses: Depending on your state, you may need two or three witnesses. They cannot be beneficiaries of your will. If your state adds a witness affidavit to its will form, you also need a notary public to make it official.
• Do I Need a Lawyer for a Will?

  • Most people require a “simple" will that merely designates guardians for children, gives away your possessions, and appoints an executor to carry out the process. If most of your assets are jointly-held and your estate is straightforward (free and clear homes and cars, assets worth less than $2 million, etc.), you can likely create an enforceable will from forms. However, like all legal documents, consider hiring an attorney to review its contents and make sure you did not miss anything.

    There are circumstances where you need legal advice. For example, you should seek the help of a knowledgeable estate planning lawyer if you:

    • Have a high-value estate
    • Have conflict in your family and a high chance of a will contest
    • Own a business
    • Have a past divorce and/or children from previous relationships
    • Need special needs trusts for adult dependents or minor children
    • Wish to delay payments to your children until they reach a certain age
• How Much Does a Will Cost?

  • For do-it-yourself will forms and estate planning packages, you will pay $50 to $200. Attorneys charge $200 to $400 per hour for legal services associated with wills and other estate planning.

• Is There Such a Thing as a Free Last Will and Testament Template?

  • There are free last will and testament forms available. However, there is no guarantee the form is valid in your state and you might not get the guidance you need.

• What If the Intestate Statutes Are Enough?

  • Sometimes, the intestacy statutes may reflect your preferences. Since they favor spouses and immediate family members, many people agree with them and believe a will is unnecessary.

    But there are specific situations that intestacy statutes do not cover. These may include:

    • You have a live-in partner and are not married. (The intestacy statutes do not cover them.)
    • You wish to create a pet trust or other guardianship plan for your animals.
    • You want to give money and assets to charity instead of family members.
    • You want to pass property to friends, roommates, or live-in partners.
    • You have strong opinions regarding guardians for your minor children.
    • You face family conflict that affects the likelihood of your estate being administered fairly.
• Can I Handwrite My Will?

  • A handwritten will is called a holographic will, and half of the states consider them valid. It must be entirely handwritten and signed. A holographic will is not regarded as enforceable unless two disinterested witnesses identify the handwriting as yours. While witnesses do not need to sign it, the holographic will must meet all other applicable legal standards.

• Can My Will Be a Voice Recording or Video?

  • Wills communicated by voice or video recording are acceptable in very few states. Most states require written wills. States that consider video or spoken wills valid only do so under specific circumstances. For example, when the testator faces imminent death (soldiers on active duty, victims of a terrorist attack, etc.), any testamentary intent recorded at the time can be enforceable. Under any other circumstances, a video or audio recording should be an extension of the will to show meaning and offer personalized messages. But it is not valid by itself.

• What Is the Difference Between a Will and Trust?

  • A will is a legal document that indicates how you want your property distributed and your affairs handled after you die. These affairs include guardians for children or pets, as well as any specific property transfers.

    A trust is a fiduciary relationship where a third party manages your property to ensure your beneficiaries' income and support. Trusts can be living trusts or testamentary trusts. A living trust is effective while you are alive and transfers property to beneficiaries after you die. Your will creates a testamentary trust, and it is effective after you die. It is a good solution if you need to care for special needs children or adults or prefer to distribute payments from your estate on a timeframe (once a month, when a child reaches age 23, etc.).

• What Is the Difference Between a Will and a Living Will?

  • A will refers to a last will and testament, and it is the primary estate planning document. It describes the distribution of your property after your death and appoints guardians for your children or animals. However, it cannot discuss preferred medical treatment or your decisions regarding end-of-life issues.

    A living will addresses treatment preferences and end-of-life care. For example, you can state whether you want to remain hooked up to ventilators or feeding tubes or if you would prefer pain control and natural death.

• Can I Make My Own Last Will and Testament?

  • Yes. There are will forms and estate planning packages available for purchase on this page. Even if your will is simple, it is wise to hire an attorney to review it and make sure it contains all required elements.

    However, there are situations where you must consider lawyer involvement. These include:

    • Estates valued at $10 million or more
    • Excessive family conflict
    • Business ownership, including part ownership of 50% or more
    • Children from previous relationships or recent divorce
    • Provide for special needs minor children or dependent adults

    In these complex scenarios, it can easily cost more to have an attorney clean up the will you drafted rather than let them create a will from scratch. At the very least, consult with an estate planning attorney so you can make an informed decision.

• Who Can Make a Last Will?

  • You can make a valid will if you are:

    • At least 18 years old
    • An emancipated minor (in some states)
    • An underage military service member
    • Mentally competent to express your wishes and understand their consequences
• What Types of Property can I Include in a Will?

  • Wills address the following property:

    • Real property (primary residence, vacation properties, and land)
    • Automobiles
    • Checking and savings accounts
    • Investment accounts
    • Valuables like furs, jewelry, or antiques
    • Heirloom items (especially if you want someone in particular to have them)

    You may hold some of these assets with a partner, friend, parent, or spouse. In those cases, the property automatically transfers to the other joint owner. However, consider naming a back-up beneficiary because you and the joint owner may die simultaneously (common with accidents or catastrophic events).

    There is another category of personal property called non-probate assets. With these accounts and policies, you usually designate a beneficiary when you purchased them or set them up. They include:

    • Life insurance policies
    • 401k, pension, and retirement plans
    • Annuities
    • Trust property
• Can I Change My Last Will and Testament?

  • You have two options if you need to change a last will and testament:

    1. Draft a codicil: A codicil is a testamentary document that amends a will. For example, if your original executor dies or becomes estranged, you can appoint a new executor by drafting a codicil. Once prepared, the codicil must be signed, witnessed, and notarized the same as with your will.
    2. Draft a new will: Will forms contain a provision indicating that all past wills are invalid. If you make significant life changes, such as divorce, marriage, or your business's sale, it is usually easier to draft a new will. It is easier to interpret codicils if they address brief portions of your will.
• Do You Still Need a Will If You Have a Power of Attorney?

  • Yes. A power of attorney allows an agent to make financial decisions and handle your affairs if you are temporarily unavailable or incapacitated. It is only effective when you are alive, and it does not allow the distribution of property after your death.

• What Happens if My Will Is Ruled Invalid?

  • The probate court may determine your will is invalid if you did not sign it or have it properly witnessed. Wills may also be invalid if contested, and the party proves you signed under duress or coercion or you were not of sound mind. These latter issues are challenging to prove, so wills are more likely to fail due to signature issues.

    If this occurs, the probate court may:

    • Follow a previous will; or
    • Invalidate the will and pass your property as if you never drafted one (intestacy)

    That is why you need to be careful and ensure your will is valid and enforceable. Otherwise, you risk the court ignoring your final wishes and beneficiaries facing substantial financial impacts.

• What Other Estate Planning Documents Should I Consider Drafting With My Will?

  • Along with your will, also consider drafting the following documents to create a complete estate plan:

    • Living Will/Advance Healthcare Directive
    • Durable Power of Attorney
    • Healthcare Power of Attorney
    • Do Not Resuscitate order
    • Living Trust
    • Testamentary Trust