A will is a legal document that states what should happen to your possessions after you die. Dying without a will means that your heirs will be determined by a court. In addition to who should get an inheritance, there are a few other things to include in your will, like who will serve as executor of your estate. There may also be certain requirements set out by your state law that your will needs to follow or else it may be invalid, which is like you never wrote one at all.
A will does not cover everything, so you should consider getting additional estate planning documents to meet your needs. A living will (advance directive) states your health care and medical decisions, a letter of intent expresses personal wishes, and a durable power of attorney (DPOA) grants someone legal authority to make financial or medical decisions for you.
A will is the foundation of a strong estate plan and it must include any requirements set by state law
You should include your estate assets, choose your beneficiaries, and nominate a personal representative
Your will does not need to include certain assets that pass outside of probate
It’s best not to include funeral arrangements in a will, since they must be made immediately upon your death
You must include basic personal information about yourself in a will, like your full name, birthdate, and address. It might also be helpful to list any other names you go by, as well as the names of your spouse and family members and their relationship to you. The person writing a will is called the testator.
The will must contain proper legal language that declares that the document is in fact a will, and not something else. This is often done through a sentence like “This is my last will and testament,” but it can be anything that shows your intent to pass along property after your death. Testamentary intent is one of the requirements for a valid will.
Assets and beneficiaries
One of the main components of a will is what assets you want to bequeath and who should get them. You can give away money, personal belongings, high-value assets, and even real estate property.
The beneficiary of a will can be a family member, friend, charity, business, or even a trust. It’s also wise to include a contingent beneficiary in your will, who will receive the assets when the primary beneficiary is dead or unable to receive it. You should take extra care to name certain beneficiaries, like your civil partner if you’re in a domestic partnership, if you want them to receive something; they may not have the legal right to inherit under your state law because they aren’t next of kin.
Learn more about choosing assets to include in your will and how to to distribute them — whether as specific gifts, percentages, or the residuary estate — in this guide on how to write a will. If you're ready, you can make a personalized, state-specific will with Policygenius using attorney-approved tools, and it'll come with an option trust.
Appointment of executor
You’ll need an executor, or personal representative, to carry out the terms of your will. Beyond distributing assets to your beneficiaries, executors manage all your affairs once you’ve died, like settling unpaid debts and filing a final tax return. You can name a family member or even a lawyer to serve as executor of your estate and stipulate how much they should be paid in the terms of your will. (The executor fee comes out of the estate.)
If you forget to name an executor in your will, someone will have to apply with the probate court to act as personal representative to handle your estate. If no one applies, the court will name an administrator for your estate.
Learn more about the executor of a will.
Appointment of guardian
If you have any minor children, you can name someone to act as their guardian in the event that you and your spouse pass away. You may also be able to name a guardian for other dependents you have, like an adult child with disabilities or a senior parent. The court will appoint a guardian for you if you do not name someone.
Learn more about choosing a guardian for your child.
Most states require a last will and testament to be signed by the testator and two witnesses. The witnesses sign the document as confirmation of the testator’s identity and mental capacity to create a will (known as testamentary capacity).
Holographic wills, or handwritten wills, don’t require witness signatures, but they are not valid in all states. Someone may still need to prove that the handwriting is yours after you die.
Learn more about witnessing a will.
Notarized self-proving affidavit
If it’s allowed in your state, you can and should include this short document in a will to make it self-proved so that your witnesses don’t have to testify in probate court after you have passed away. Some states may also permit a self-proving statement included in the body of the will itself. The affidavit must be notarized.
Learn more about self-proving affidavit and if it’s accepted in your state.
What you should not put in your will
Certain assets that already have a way of being transferred to someone should not be included in your will. This includes a life insurance policy and financial assets with a designated beneficiary, like a retirement account or bank account. You should also exclude property you own jointly with someone else and property held in a trust, which someone receives separately from a will. Learn more about a beneficiary designation vs. will.
Though you may want to include burial instructions, it’s best to leave these out since your loved ones will need to make decisions promptly upon your death — they may not have time to look to your will.
See the full list of what you should never put in your will.