Being prepared for what happens at the end of life can seem challenging, but it's important to leave a last will and testament to ensure your loved ones are taken care of. Almost half of Americans over 55 don't have a will, even though they believe they should have their affairs in order by 50.1 It can feel uncomfortable at first, but writing a will can be easier and simpler than you think.
To help you prepare your will, we'll cover what a last will and testament involves, provide you with resources for writing a will, and answer frequently asked questions on the topic.
What Is a Last Will and Testament?
A last will and testament is a legal document that dictates when and how beneficiaries inherit your property and assets upon your death. It sets the foundation for an estate plan, which outlines what happens to your estate during and after your life.
What Is Included in a Last Will and Testament?
A last will and testament usually includes a few key parts.
- An executor: Your personal representative, or executor, carries out the wishes written in your last will and testament.
- Appointed guardians: If you have children or dependents, your last will and testament lists a guardian to care for them after your passing.
- Distributing assets: Your will provides specific instructions for where and how assets and personal property go to your beneficiaries.
- Charitable contributions: You can decide whether you want to include contributions to charities made in your name.
Did You Know: You can name your spouse, adult child, relative, or friend as your executor. If your affairs are more complicated, it's better to list an attorney as your executor.
Things You Should Not Include in a Will
A will is useful for bequeathing your personal and financial property while carrying out your wishes, but there are certain assets that are better to leave out. Doing so makes it easier to carry out your wishes and saves extra effort while drafting your will.
- Assets with listed beneficiaries: These are already distributed directly to the beneficiaries named. They include:
- Bank accounts
- Brokerage and investment accounts
- Retirement accounts and pension plans
- Life insurance policies
- Jointly owned property: This goes directly to the person with whom you jointly own a property upon your passing, and includes stocks, investments, and real estate.
- Funeral instructions: Leave funeral instructions out, as family members may not be able to see your will before making funeral arrangements. Jim Revels, a CPA and member of the American Institute of CPAs Personal Financial Planning Executive Committee, says, “typically these documents are not read until weeks after the funeral.” Instead, you can include a letter of instruction, which is a less formal document that expresses these wishes.
FYI: If you have a spouse, you should write separate wills. Even if they look similar, they'll allow you to address property that's not jointly held. It will make taking care of your affairs much easier for your loved ones.
Requirements for a Last Will and Testament
For your will to be legally binding, it needs to have these elements:
- You must be of sound mind, which ensures that you understand your relationships to your beneficiaries and that you're leaving them your property.
- The will must be signed by you, in your handwriting.
- At the time you sign the will, two or more witnesses must be present and sign it themselves. Most states dictate that your beneficiaries cannot be witnesses to your will.
Quick Tip: For more tips on how to create a will, read our guide on how to make a will.
Be thorough with your will, since it may be thrown out if it doesn't meet all the requirements for it to be valid. Different states have different requirements for wills, so you may want to have yours reviewed by an attorney.
Differences Between a Will and a Trust
Wills are useful for passing down your personal assets, but you may also want to consider having a trust in your estate plan.
Both wills and trusts transfer an estate to heirs, but each works differently. A will is a legal document that dictates how your assets get passed down and how to handle affairs after your death. A trust is a legal arrangement that allows you to transfer property and assets to a trustee until your beneficiaries can claim it. We'll take a closer look at the differences below.
- Are subject to probate court and expenses. Probate court is a legal proceeding in which the court manages how your assets are distributed after your death.
- Are a part of the public record.
- Can be challenged in court.
- Give you more control over when and how your assets are distributed.
- Can minimize taxes on the assets you leave to beneficiaries.
- Remain private.
- Allow you to skip probate court.
FYI: Jim Revels recommends reviewing your will every three to five years to make sure it's up to date. Your wishes may change in the event of major life events, such as marriage, divorce, or the birth of a grandchild.
Why You Need a Will
A will is important in order to ensure your loved ones are taken care of after your death. When a person passes without a will, the state they live in at the time of passing provides one for them. Then an administrator appointed by a court gives their assets to their spouse, children, and other blood relatives.
Quick Tip: Are you working on getting your finances in order? Visit our guide to finance for seniors. We cover everything from retirement planning to medical expenses.
A will also allows you to pass inheritances to any nonblood relatives, friends, or significant others. If you have no relatives, your assets may go to the state without a will. You also cannot contribute to charitable organizations you'd like to name as beneficiaries.
Resources for Writing a Last Will and Testament
Writing a last will and testament is now easier with online will-making services. Here is a list of companies we recommend for seniors to help them write their wills:
- LawDepot publishes do-it-yourself legal documents. It offers free will templates drafted by legal professionals that are easy to understand.
- LegalZoom is a legal technology company that helps you draw up legal documents without hiring a lawyer. It offers templates for basic wills, with options to have questions answered by the company's network of attorneys at a higher price.
- DoYourOwnWill.com is a free online will-maker that offers an easy way to compose your will. It's completely free, but the site still recommends legal counsel for complex situations.
Other Frequently Asked Questions About Wills
- Does a last will and testament need to be notarized?
A will doesn’t need to be notarized, but it is recommended. Having a notarized will can help avoid challenges in probate court while it is being carried out.
- Can I write my own will and will it be legal?
Yes you can, and it is legal as long as you ensure that you follow certain steps.
- The will is in writing.
- You are of sound mind at the time of writing the will.
- You have signed and dated the will in front of witnesses who are at least 18 years of age.
- The witnesses are not beneficiaries of your will.
- What makes a last will and testament invalid?
A will is invalid if it is not witnessed and signed properly. If it lacks your signature and the presence of at least two witnesses at the time of signing, it is deemed invalid in probate court. A will is also invalid if it doesn’t meet the legal requirements of the state you live in.
- Is a last will and testament the same as a living will?
No. A last will and testament deals with affairs after one’s death, while a living will provides medical directions for a person in the event they become seriously ill or incapacitated.
- How much does a will cost?
The cost of a will depends on your needs. Do-it-yourself kits for wills start around $10, while it costs around $150 to have a basic will drafted. If you choose to hire a lawyer, fees start at $300. You may pay $1,000 or more to hire a lawyer if your situation is more complex.2