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Making a Will

Written by: A. Hollyn Scott, Esq. , Contributing Author
Reviewed by: Catherine Hodder, Esq. , Senior Legal Writer
Last updated March 07, 2024

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Your will, sometimes referred to as your “last will and testament,” is the cornerstone of your estate plan. This legal document expresses your final wishes regarding distributing your assets and satisfying your responsibilities after you die.

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The person who makes a will is legally known as a “testator.” The testator gives instructions on distributing their property to the family members and loved ones they choose after they pass away. They may also name guardians to care for their minor children and other dependents. And they name a personal representative or executor to manage their estate and follow their will’s instructions.

This article provides answers to common questions regarding how to make a will.

Choosing a Personal Representative

One of the most important people addressed in a will is the executor (also called the personal representative, depending on where you live). Once the testator dies and the will becomes active, the executor carries out the testator’s instructions. They are also responsible for the overall management of the estate’s affairs, including paying the estate’s debts and taxes and notifying banks, credit card companies, and government agencies of the testator’s death.

Your executor has a position of great trust and responsibility, so choose the executor of your will carefully to ensure their dependability and competence. Your personal representative should also ideally be someone your family members and beneficiaries can work with to avoid unnecessary conflict.

Note that custody of the original will is very important in settling legal issues and disputes. In particular, the executor or personal representative must have access to the document. Store your original will in a safe place, such as a fireproof safe, and notify your executor.

Distributing Assets and Other Property

When you pass away, your will goes to probate court. Probate is the legal process of administrating your will after your death, including proving its validity and distributing your assets. Your named executor or personal representative distributes your assets, including any bank accounts, retirement accounts and IRAs, real estate, personal property, and investments. They also settle your debts, such as mortgages and credit cards. If you do not have a will or beneficiary designations on your accounts, the court will distribute these assets according to your state’s intestate succession laws. “Intestate” is the legal term used when someone dies without a will.

As you plan your will, remember that you may have probate and non-probate assets. Probate assets are typically held in your name only and distributed according to your will’s terms. Non-probate assets are assets held as joint tenants with the right of survivorship, are payable on death, or have a beneficiary designation. For example, money in a joint account does not go through the probate process. Similarly, life insurance benefits are not included in a will, as these payments automatically go to the insurance policy’s named beneficiary.

Once you’ve drafted a will, it is also essential that you update it as needed. For example, life changes such as marriage, divorce, or the birth of a child may require you to add or remove beneficiaries or make other revisions to your will.

Naming a Guardian for Minor Children

A significant benefit of creating a will is the ability to name a legal guardian to care for your minor children and other dependents if there is not another parent or guardian when you die. Naming a trusted family member or loved one as the guardian for your children gives you the peace of mind of knowing that they will care for your children if something happens to you.

Providing for Pets

Remember your pets when estate planning. In your will, you can name someone to care for your pets when you pass. Additionally, you can leave money and instructions for the pet’s care.

What Makes a Valid Will?

Generally, the state requirements for a “valid” will try to prevent fraud or coercion. In other words, they are intended to ensure that the formal legal document is a true reflection of your own will, hence the name.

Most states require two common safeguards.

  • First, you must be of “sound mind” when you create and sign your will. The law considers a person of “sound mind” if they have the mental capacity to understand that they are writing a will and can make decisions about how they want their assets distributed after their death.
  • Second, at least two people must serve as witnesses when you sign your will.

Additional requirements vary depending on your state’s laws, so be sure to research your state’s procedures and requirements for finalizing a valid will. For example, a few states require you to sign each page of your will.

If your will violates a law, the court may disregard that part of your will. For example, you cannot disinherit a minor child. If you have a clause to that effect, the court ignores that provision, and the minor child receives an intestate share. In some cases, a grave error, such as not having the property witnesses, may invalidate the entire document.

Need Help Drafting Your Will?

Most people agree that a last will and testament is an important document for everyone to have in their estate plan. However, they are surprised to learn that they can create a simple will and many other estate planning documents, such as a power of attorney or living will online.

If your estate is relatively simple, you can bypass a time-consuming visit to a lawyer and draft an online will using a customizable DIY templates. Get started today by using our do-it-yourself last will and testament form.

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