How to Create a Will: Your Estate Planning Guide

A will is an important legal document and a key component of estate planning. It ensures your estate planning wishes are respected and your loved ones are cared for after your death.

But as you start this intricate legal process, you might feel overwhelmed: “How do I create a will? Where do I start? What does my will need to say?” From identifying your assets and debts and designating beneficiaries to appointing an executor, this guide serves as a roadmap for creating a will. For the most peace of mind, use this guide in addition to consulting with an estate planning attorney.

Types of wills

There are four types of wills: simple will, testamentary trust, joint will, and living will. The will that is right for you depends on your and your family’s situation. But as you dig deeper into the estate planning process, you may find that you need more than one type of legal document. Luckily, all four types of wills can work together.

Simple will

A simple will is best for people with no children or complex assets or people who may not have a lot of assets to distribute. A simple last will and testament first identifies who is creating the will, also known as the testator. The document confirms that the testator was of sound mind when the last will was made. It then names an executor and beneficiaries, as well as what they will receive. This process is known as providing a self-proving affidavit.

Testamentary trust

A testamentary trust is an estate planning document that works with your will. It provides for the distribution of all or part of your estate and proceeds from your life insurance policy. Testamentary trusts are ideal for people who have young children or children with disabilities. A testamentary trust can also be used with a special needs trust. However, keep in mind that this type of trust does not avoid the probate process.

Joint will

This is commonly used by married or partnered couples to distribute the couple’s assets. For a joint will to be valid, both parties must agree on asset distribution. In most cases, assets will be passed to the surviving partner, and when the surviving partner dies, assets will go to any surviving children. The downside to joint wills is that if circumstances change after a partner’s death, the surviving partner is still bound by the terms of the joint estate planning documents.

Living wills

A living will is an estate planning document that details how you would like to receive medical care if you can’t make decisions for yourself. Having a living will in place can help spare your loved ones from having to make some difficult decisions if you are incapacitated.

What is the simplest way to make a will?

If you’re wondering how to make a will as easily as possible, all you need to do is put your final wishes—including beneficiaries, assets, and legal guardians for minors and pets—on paper. To be a legally binding document, it must be witnessed, usually by at least two witnesses, and signed by a notary public.

Many people choose to use a will template, which provides step-by-step instructions. Usually, there is a modest flat fee for this template. These will makers generally include the necessary self-proving affidavit that makes the will valid.

While this notarized document may be the easiest way to create a will, it isn’t the most effective way to fulfill your final wishes. Speaking with an estate attorney can give you confidence that your will meets all the legal requirements and is legally binding.

What shouldn’t go into your will?

Even though you can make your final wishes known and distribute assets in a will, it’s not always the most legally sound or appropriate place for all of your last wishes. Some things are better served by being placed into a living trust, a living will, or other estate planning documents. Here are a few things that you should avoid putting in your will:

Business interests

Most wills have to go through the probate process. Because probate can take time, it’s best to avoid leaving your business interests in your will because any delays can adversely affect ownership or management transitions. Instead of putting business interests in your will, business owners should have a succession plan as part of their estate planning documents.

Personal wishes and funeral instructions

A common misconception about wills is that this is where you make your final wishes known for a funeral or end-of-life arrangements. However, because of the probate process, you risk your loved ones not knowing what those wishes are until after probate is complete.

Instead of putting your final wishes and desires in your will, consider putting that information into a letter of instruction. This less formal document can be delivered directly to your loved ones so they know your final wishes. A copy of it should also be placed in a physical or digital legacy drawer. This is a place that your loved ones know about and can access readily.

Coverage for beneficiaries with special needs

If you have children or other extended family members with special needs, providing for them in your will can risk negatively impacting government benefits they may be eligible for. Instead, consider a special needs trust. This type of trust will ensure that your loved ones are cared for without jeopardizing their government benefits. A special needs trust is also a good idea for blended families who may want to provide differently for separate groups of children.

Certain types of property

Not all property can be included in your will. Any real property held in trust or joint tenancy should not be included in your will. Many laws and rules affect how physical property can be passed on after death. Accounts with named beneficiaries (such as life insurance policies and retirement plans) also won’t go in your will. Check out this article for more information on what property both you and your spouse or partner should avoid including in your will.

Creating a will in 10 steps

Creating a will is complex but doesn’t have to be overwhelming. Use the steps below as a guide to help you get started.

Step 1: Identify your assets and debts

Think of all your assets as the treasure chest of your financial life—they include cash, financial and investment accounts, bank accounts, property, and more. Conversely, you may have debts and financial obligations owed to another party, such as mortgages or credit card debt. These two elements form the backbone of your estate plan, and understanding them is a fundamental step.

Here is a list of important documents and information that can help you identify your assets and debts:

• Bank statements
• Property deeds
• Mortgage statements
• Financial accounts (retirement accounts, 401(k), investments, etc.)
• Insurance policy information
• The names of any financial advisers (bankers, insurance agents, etc.), along with their companies, phone numbers, and email addresses

Once you feel like you have a handle on your assets and debts, you can move on to designating your beneficiaries.

Step 2: Designate beneficiaries and inheritance details

Beneficiaries are the people who will receive your hard-earned assets. Without clear beneficiary designations, your family heirlooms might end up in the hands of distant relatives or distributed by the probate court according to state law.

To prevent this, ensure your beneficiary designations are current, particularly for tangible assets such as personal property. Assigning valuable assets individually can help avoid potential disputes among heirs.

A personal letter or memorandum can also be appended to your will for additional legal support and to ensure comprehension of your intentions. Including a self-proving affidavit can further strengthen the validity of your choice.

There are no set criteria for designating your beneficiaries. Some designations may be sentimental, while others may be more practical in nature. Here are some tips that can guide you through deciding what heirs should inherit your assets.

• Name a primary and a contingent beneficiary. Life is ever-changing. It’s good to have a contingent beneficiary in your will if something happens to your primary beneficiary or you simply change your mind about where you want your assets to go.
• Update your will for life events. Review your list of beneficiaries regularly. Significant life changes like births, deaths, divorces, and marriages are good times to review your will and to update your beneficiaries as needed.
• Be mindful of tax consequences. Some things that can be transferred by beneficiary designation, like IRAs, retirement plans, and life insurance policies, have specific tax rules. Awareness of tax rules will help ensure you leave your beneficiaries your assets, not tax debt.

Step 3: Appoint guardians to minor children

Selecting trusted guardians who share your values and will care for your children responsibly is an important part of how to create a will. It can also prevent possible probate court disputes. When picking a legal guardian, consider their willingness and responsibility. You can also specify in your will a person you do not wish to have guardianship of your children, ensuring the kids’ best interests are always prioritized.

Here are some things to think about when appointing a guardian for your minor children:

• Skills. Choose a guardian you feel will be good with and good to your children—someone with the time and disposition to care for and nurture your children.
• Shared values. Choose a guardian you and your children know well and are comfortable with—someone who shares your values and parenting style. If you have any specific religious beliefs, choose a guardian who shares your faith.
• Financial stability. Even if you plan to leave something behind to help with the care and upbringing of your children, you should choose a financially stable guardian. Your guardian should be someone who can feed, clothe, and educate your children without it being a financial burden.
• Physical ability. A person who may become your child’s guardian should be someone who can shepherd your child through to adulthood and is healthy enough to handle the challenges of parenthood.
• Willingness. Before you designate a guardian for your minor children, ask the potential guardian if they are willing to care for your children.
• Backup guardians. You should have at least one backup guardian for your children. If anything happens to the first guardian, this ensures you still have someone to care for your children.

Step 4: Appoint an executor

The executor, or personal representative, is the person who will be in charge of handling your assets. This should be someone you trust and who is responsible and organized—administering an estate involves a lot of paperwork.

You should talk to this person beforehand to ensure they are willing to accept the role. Let them know where to find important estate planning documents, such as your will, life insurance policy, and passwords for online accounts.

Here are some things to consider when naming an executor.

• Do they have the time for all of the paperwork? There is a lot of paperwork involved in being the executor of an estate. From paying bills and tracking down financial records to dealing with hospitals and insurance, your executor should be a well-organized person who has the time, patience, and talent to deal with these tasks.
• Do they have the patience to work with heirs and insurance? Even when you create your estate plan to avoid conflict, it is always possible that conflict among your heirs can arise. Your executor should be level-headed and able to deal with any dispute calmly and reasonably.
• Do they make good financial decisions? Your executor will handle the finances of your estate. Appoint someone financially stable with a good record of making sound financial decisions.

Step 5: Make sure your pets have a home

For most of us, our pets are members of our family. But under the law, pets are considered property. When you’re creating a will, be sure to appoint a guardian to care for your pets.

Just as with any other parent or guardian for minor children, you should speak with your chosen pet guardians ahead of time to see if they are willing to take in your furry, scaled, or feathered family members.

Step 6: Protect your digital legacy

In our digital age, you’ve probably collected assets you may not even think of, like social media accounts, websites, blogs, and photos and videos stored on a computer or smartphone. You also likely have online accounts like bank and credit card accounts, investment accounts, and even rewards programs like airline miles.

Ensure you share relevant login information for all of your digital assets—such as passwords or security questions—with the appropriate people. A password manager can keep your sensitive data in one place, making it easier to transfer hands. You might also need to include your computer password and phone PIN for those you choose to access these accounts.

Step 7: Put it on paper

Learning how to make a will means more than checking boxes on a checklist. Here are some tips to help you create your will. An estate planning lawyer can also help you make sure your wishes are clear.

• Be specific. Don’t leave it up to readers to interpret your will as you wish. Use clear language and exact names when deciding who gets what. Remember you can also name people who should not receive certain items.
• Be realistic. Know which tangible assets, like artwork or furniture, you can bequeath to specific people to avoid conflicts.
• Include a residuary clause. It’s difficult to remember everything you need to put in your will, especially if it’s your first try. A residuary clause is a general provision that names a beneficiary for any remaining assets not specifically included in your will.

Step 8: Change or update your will as needed

While major life events are a good time to update your will, you can do so at any time. For example, if your financial situation changes or you receive an inheritance, you might want to take a look at your will. If you do need to make changes, you can amend it by adding a codicil that bears your signature and any relevant witness signatures set forth by state laws. You can also rewrite your will entirely if it needs more than a minor change.

Any changes you make to the executor or beneficiaries of your will must be noted among the updates. However, you don’t legally need to inform these people that their role has changed. Your will is not made a public record unless you die, so until then, they won’t know whether and how they’re included in it unless you tell them.

Step 9: Abide by state laws to validate your will

Most states require that your will be signed in the presence of at least two witnesses. Each state has different laws for who can serve as a witness and other requirements. Be sure to follow your state’s laws. If you change your will, ensure all copies reflect those changes and that the necessary witnesses sign updated documents.

Other rules for a valid will are:

• You must be of sound mind when you sign your will.
• You can’t be under duress, meaning no one forced you to make any decisions.

Step 10: Store your will and important documents

Just like you’d store precious gems in a safe, your will and essential estate planning documents need secure storage. This could be a fireproof safe deposit box or a secure digital vault if you opt for an e-will. Inform a trusted individual, like your estate planning lawyer, about the location of these personal items and documents, to ensure they can be accessed when needed.

DIY wills: Pros and cons

A DIY will might seem appealing if you’re an attorney or a fan of doing things yourself. A DIY will does have some advantages:

• It’s free and convenient
• It provides sufficient coverage for most individuals
• It's easy to modify
• It’s more economical than hiring a lawyer.

 However, creating a DIY will is not always straightforward and can come with challenges:

• It requires precision and attention to detail
• It’s more prone to errors
• It may not cover all necessary legal aspects

 When deciding between a DIY will and professional services, consider cost, complexity, and familiarity with legal procedures. Remember that getting professional advice ensures your will is legally valid and comprehensive. Weigh the pros and cons carefully, like choosing between spending your money on a DIY project and hiring a professional contractor.

Summary

Creating a will and planning your estate might seem daunting, and maybe even uncomfortable, but it’s essential to ensure that your wishes will be honored and your legacy is secured. With the proper knowledge, tools, and guidance, you can have peace of mind that your will is sound and thorough. This comprehensive guide has given you a good foundation for understanding the process—you’re now prepared to identify your assets and debts, designate beneficiaries, and learn to store your will securely— and the next step is to make your plan.

Remember, estate planning is not just a one-time task; rather, your plan will need regular reviews and updates. An estate planning attorney can help you make sure your will accurately reflects your wishes and safeguards your legacy.

 The most important thing is that you don’t neglect making an estate plan. LegalZoom offers a variety of attorney-backed estate planning services to meet your needs. Browse our packages or set up a call to determine the best option for your circumstances.

FAQs

When should I make a will?

It’s best to learn how to make a will as soon as you have assets or dependents. Major life changes like marriage, a home purchase, a new job, or new children are also key times to consider creating or updating a will.

What’s the difference between a will vs. trust?

There are a few important differences between a will and a trust: A will directs asset distribution after death, while a trust manages assets during your lifetime and beyond. Trusts offer more privacy and can avoid the probate process, while wills become public record and have to go through probate.

Do I need a lawyer to create a will?

While you can create a will without a lawyer, it isn’t usually recommended. Professional guidance helps you create a legally valid will, accurately reflects your wishes, and avoids potential issues. When you use our online service to create a LegalZoom will, you can choose to have an attorney review it and provide advice for a simple flat fee.

Jennie L. Phipps contributed to this article.