Last Will and Testament

A last will and testament is a legal document that allows a person, called the testator, to specify how their probate property will pass after their death. A will can also name an executor to manage the estate, designate guardians for minor children, and provide instructions for handling other estate matters.

A will takes effect only upon the testator's death and can be revised or revoked at any time beforehand, provided the testator remains mentally competent. Without a valid will, state intestacy laws determine how the estate is distributed, often in ways that do not reflect the deceased's wishes.

How a last will works

The testator must be of legal age (typically 18 or older) and of sound mind at the time of signing. The testator must sign the document in front of at least two witnesses who are not named beneficiaries, though requirements vary by state.

After the testator dies, the will goes to probate court, where it is validated, and the estate is distributed under court supervision. The executor pays outstanding debts, files taxes, and transfers assets to beneficiaries. Probate can take several months or longer, depending on estate complexity and state law.

Common uses

People commonly use a last will and testament for the following purposes:

• Distributing property: The testator leaves specific assets to named individuals or organizations, including charities.
• Naming a guardian: The testator designates who will raise minor children if both parents die.
• Appointing an executor: The testator identifies a trusted person to manage the estate and carry out its instructions.
• Providing for pets: The testator directs who will care for a pet and can allocate funds for that purpose.
• Stating funeral preferences: The testator communicates burial or cremation wishes, though these provisions are not legally binding in all states.

Key limitations

A will generally governs only property that becomes part of the probate estate. Certain assets may pass outside the will, including life insurance proceeds, retirement accounts with valid beneficiary designations, and jointly owned property with rights of survivorship. A valid beneficiary designation generally controls how the related asset passes, subject to applicable law.

A person may contest a will in probate court on grounds such as lack of testamentary capacity, undue influence, fraud, or improper execution. A clearly drafted and properly executed will may reduce, but does not eliminate, the risk of a dispute.

State execution requirements vary. Some states recognize holographic, or handwritten wills, while others do not. A move to another state may affect how the estate plan operates, so the testator should review the will after relocating.

Last will vs. living trust

A living trust transfers assets to beneficiaries without going through probate, which can save time and reduce costs. A trust also keeps asset transfers private, since probate records are public.

A will is generally simpler and less expensive to create, and it covers assets never transferred into a trust. Many estate plans include both documents.

Related terms

The following terms describe documents, roles, and processes associated with a last will and testament:

• Living trust: An alternative to a will that transfers assets to beneficiaries without probate.
• Executor: The person named in a will to manage the estate and carry out its instructions.
• Probate: The court-supervised process of validating a will and distributing the estate.
• Advance healthcare directive: A document that specifies medical treatment preferences if a person becomes incapacitated, often created alongside a will.
• Power of attorney: A document that authorizes someone to make financial or legal decisions during the testator's lifetime, distinct from the executor's role after death.

FAQs about last will and testament

Can a person write their own will without an attorney?

Yes, but the document must still meet the state's execution requirements, including the correct number of witnesses and, in some states, notarization. A self-drafted will that fails these requirements may be declared invalid, leaving the estate subject to intestacy laws.

What happens if a will is never submitted to probate?

It has no legal effect. The named executor has no authority to act, and the estate distributes under intestacy laws as though no will existed. Most states require anyone possessing a deceased person's will to file it with the probate court within a specified period.

When should a will be updated?

A person should review their will after a significant life or financial change, such as:

• Marriage or divorce
• The birth or adoption of a child
• The death of a beneficiary, guardian, or executor
• A substantial change in assets
• A move to another state