What is a will & do I need one?

A will is a legal document outlining who receives your assets after you die, who will manage your estate, and other information like who will take care of your kids.

Derek Silva

Derek Silva

Published August 28, 2020

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KEY TAKEAWAYS

  • A will is a document that describes how you want your estate to be distributed after you die

  • Your will may name an executor to manage your estate, guardians for your children, and other instructions like the creation of a trust

  • All wills must go through probate, a court process where the will’s authenticity is proved and its terms are executed

  • Everyone could benefit from having a will and making one yourself or through a digital service could cost $150 or less

A last will and testament, simply called a will, is a legal document that outlines who you want to receive the assets in your estate — all your property, money, and other belongings — after you die. You can name as many beneficiaries as you want, and you can generally name people, businesses, or organizations. You can also choose to exclude people from your will (though this may prove difficult in some situations).

After someone dies (at which point they’re called a decedent), their will needs to go through probate, a process where a court proves the authenticity of the will. Once the will is proved, the terms in the will can be carried out. If the will names an executor, that’s who will manage the disbursement of the deceased person’s assets. If no executor was named, the court will appoint a personal representative to manage the estate.

A well made will is an essential part of your estate plan. It can make passing on an inheritance much easier and if your estate isn’t very big, a will may be the only document you need for passing on assets. Creating a will is also relatively inexpensive in many cases, potentially costing you about $100 or less.

However, a will doesn’t cover all situations. For example, wills aren’t a good place to lay out your wishes for what people do with your assets after receiving them (consider a letter of intent). Some estates or assets may also be more easily managed through a trust instead of a will.

Read on to learn more about what’s in a will and whether or not you need one.

Who needs a will

A will is an essential estate planning document that just about everyone should have. You may not need a will if you have nothing to pass on or if you don’t care who receives your assets, but you and your loved ones can still benefit from a will. For example, many people expect their estate to simply pass to their spouse after they die, but what if your spouse dies before you or at the same time as you? Having a will helps your family avoid the need to make big decisions during a time when they’ll be mourning.

It’s also possible that someone may not honor your wishes unless you have a will. As an example, let’s say you want a step-child or other family member to receive a certain amount of money from your estate, but your spouse or children do not like that person. They may choose not to pass money to that family member since there is no legal obligation for them to do so.

Other documents you need

In addition to a will, there are some essential estate planning documents that most people would benefit from having, like a letter of instruction and a living will. Living wills, also called advance directives, specify what medical care you want to receive if you become sick, incapacitated, or otherwise unable to communicate your own wishes.

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What is in a will?

A main component of your will is naming the beneficiaries who will receive assets from your estate, but you can do much more than that. You can name an executor to manage your estate after you die and to handle disbursing assets to your heirs. You can also name a guardian for your minor children. If you wanted to move your assets into a trust, whether you already have one or whether you want to create one via your will, you could do that too.

Here are 5 common parts of a will:

  • Testamentary intent
  • Nomination of an executor
  • Beneficiaries
  • Nominations of guardians of minor children
  • Signatures from you and any witnesses

Testamentary intent

A valid will must contain language stating that the document is in fact intended to be the last will and testament of the testator (the will creator). This is referred to as testamentary intent. A valid will also needs to confirm that the testator signed it of their own volition and when they were of sound mind (also referred to as your testamentary capacity).

Nomination of the executor

Choosing an executor is a big decision because they will do quite a bit for your estate after you die. Your executor (sometimes called a personal representative) must take your will to your county court after you die in order to begin the probate proceeding, which is when your will is proved authentic and then your assets are disbursed to beneficiaries. Executors may also handle other matters for your estate, like paying off any debts or filing an income tax return (for you or for your estate if it owes estate tax).

Your state may have specific requirements for who can serve as executor, like requiring an in-state resident who is at least 18 years old. Any person you nominate as executor has the right to decline, so consider naming a successor executor as well. (The court will appoint someone if you don’t name anyone or if your chosen executor declines.)

Read more about the responsibilities of an executor.

Beneficiaries

Your beneficiaries are your heirs — the people who receive your things after you die. For the most part, your beneficiaries can be people, businesses, and organizations (pets can’t be beneficiaries, but you can plan for their care). You may choose to include specific bequests (gifts) if you want someone to receive a certain asset — like leaving your PlayStation to your young cousin or your art collection to a museum. Otherwise the value of your estate will generally be divided up into proportional shares for each beneficiary.

In addition to primary beneficiaries, you may also want to name contingent beneficiaries (or remainder beneficiaries) who will receive your assets in the event your primary heirs have died or otherwise cannot legally receive your bequests. If you die without legal beneficiaries, you are considered to have died in a state of intestacy and the court will determine who should get your estate (likely your closest relatives) according to the laws of intestate succession.

Laws also vary by state, so there may be laws governing who is entitled to receive your assets after you die. For example, in a community property state your spouse has equal ownership of everything you acquired during your marriage, and they may receive some of your things after you die even if you don’t want them to.

See: Five celebrities who died without a will, and what happened to their estates

Nominations of guardians of minor children

Your will can specify who you want to take care of your minor children (or other dependents) after you die. Guardianship may only be necessary in the event your spouse predeceases you. Any person who you nominate for guardianship has the right to decline, so you may want to discuss plans with your nominee before writing them into your will.

Learn more about guardianship.

Signatures and witnesses

You need to sign your will in order for it to be valid. At the same time, most states require that you two have two witnesses when you sign, who also add their signature. When you die, your witnesses may be called to the probate court to affirm that they witnessed you signing the will. Each state has its own rules about who can serve as witness, and your will may not be valid unless it’s properly witnessed.

You may also choose to add a self-proving affidavit and get your will notarized, which isn’t necessary but could make it easier for a probate court to prove your will’s validity.

What a will doesn’t do

There are some notable things that you don’t need to cover in your will: your desires and wishes, payable-on-death accounts, jointly owned property, and trust assets. (For a more complete list, see our discussion of what not to put in your will.)

Your will is not a good place to describe what you want someone to do with assets after they’ve received them. You also may not want to put funeral or burial arrangements in your will. Consider a letter of instruction instead. Letters of instruction can also help your executor by listing the financial accounts you own; your emails and logins; your social media accounts; contact information for your attorney or accountant; the location of important documents like a birth certificate or the title for your house; and any tax obligations your executor will need to handle.

Related article: Where should I store my will?

Assets that have their own beneficiary designations don’t need to go through probate unless you didn’t name a beneficiary or unless the beneficiary has already died. These are called payable-on-death (POD) or transfer-on-death (TOD) assets and include bank accounts, retirement accounts, investment accounts, life insurance death benefits, and disability insurance survivor benefits. Bequeathing these assets to someone in your will could potentially just make probate longer.

Jointly owned assets will pass to the other owner when you die, so it may not be necessary to put them in your will. One arrangement that may help a married couple to better pass on jointly owned assets (including if you live in a community property state) is a mirror will with a joint trust.

Trust assets

A trust is managed according to the trust document used to create the trust. Any instructions for passing on trust assets are included in the document and do not need to be included in your will. Including assets in your trust and will instructions may only cause confusion for your heirs, especially if the instructions conflict.

Many people elect for some or all of their assets to go into a testamentary trust, which is created after you die, according to instructions in your will (called a pour-over will). The trust administrator, named in the will, can then disburse the assets according to your wishes. Importantly, a trust allows you to give specific instructions, such as what age the trust beneficiaries must be to receive the assets or trust funds.

Explore the pros and cons of having a living trust and a will.

How to create a will

There are a few different types of wills, including handwritten wills (holographic wills) and oral wills (nuncupative wills). Most people choose to type and print their will, but all types of wills can be valid as long as they are properly created.

You can make a will a few different ways: create your own using a template (the cheapest option); use a digital service or app (a good middle option); work with an estate attorney (most expensive but necessary for complicated situations).

Write your own will

Creating your own will is the cheapest option. You can make a will online from a free template, or you can create a handwritten will as long as you follow all of your state’s laws. A will that’s valid in one state may not be valid in another, so always check your state’s requirements for a valid will.

You don’t necessarily have to use legal language to write a will, but it’s possible someone will contest the will if they find it ambiguous and see an opportunity to change inheritances. Having someone contest your will could create unnecessary family division and ultimately be decided by an expensive or prolonged court battle.

Use a will-making service

Using a digital service or app is a good option for many people because you can make a personalized and state-specific will, potentially for $150 or less, without necessarily having to research your state’s laws. Just make sure any service you use has been vetted by attorneys so that you know it will create valid wills.

The Policygenius app offers attorney-approved tools, step-by-step guidance, and creating a will costs just $120. Download the app now to create your will.

Work with an estate attorney

The traditional way to create a will is by working with an estate planning attorney (also called an estate attorney, estate planning lawyer, or estate lawyer). Attorneys who are licensed to work in your state should know the local laws well, and they can help you create a strong will that’s tailored to your needs. This is the most expensive option, with the cost of a simple will exceeding $300 in some areas.

While many people can create an effective will without an attorney, you may benefit from an attorney’s help if you have a large estate, wealthy estate, many beneficiaries, a blended family, or if you want to disinherit a close family member. An attorney can also help you plan for any estate tax or inheritance tax.

Learn more about who should hire an attorney instead of making their own will.

Can I update my will?

If you need to update the terms of your will, you may want to add a codicil. A codicil is an amendment to your will and you can also make big changes through it, like changing your executor and beneficiaries. Adding a codicil will require you to have it witnessed and signed, just like you did with your will. (For that reason, many people simply choose to create a new will.) You may want to make a new will if you experience a major life event such as a marriage, divorce, or the birth of a child. In some states, getting married or divorced automatically revokes your will.

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Personal Finance Expert

Derek Silva

Personal Finance Expert

Derek is a tax expert at Policygenius in New York City. He has written about multiple personal finance topics in the past, and his work has been covered by Yahoo Finance, MSN, Business Insider and CNBC.

Policygenius’ editorial content is not written by an insurance agent. It’s intended for informational purposes and should not be considered legal or financial advice. Consult a professional to learn what financial products are right for you.

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