What Is a Last Will and Testament?

Senior Couple Planning will and trust funds

Many of us resist thinking about life after death. However, if you own any property or have children or other dependents, you might want to give it some consideration. One way of doing this is by drawing up what's known as a last will and testament.

A last will and testament, commonly called a will, is a document that spells out what you want to happen to your property after you're gone. It also can designate who you want to care for your minor children and other dependents following your death.

This document is a critical part of an estate plan, and helps ensure your wishes are followed after you die. However, many Americans don't have one of these documents. A recent estate planning survey by Caring.com found that just 32% of survey respondents had wills, down from 42% in 2017. The top two reasons cited for not putting together a will: "I haven't gotten around to it" (35.7%) and "I don't have enough assets to leave anyone" (30.4%).

If you don't have a valid will in place when you die, a court-appointed administrator will likely be the one deciding how to divide your estate, which comprises everything you own at the time of your death. Creating a will can help save your loved ones from a potentially messy situation after your death. Follow along as we tell you how to do it.

How Does a Last Will and Testament Work?

A last will and testament offers guidance for what happens to your assets after you die. A will clarifies your intentions about:

  • How to distribute your property, money, assets and other valuables following your death.
  • How much of an inheritance you want to leave to your loved ones, such as if you'd like your estate equally divided among your heirs.
  • Whether you want any charitable contributions made in your name.
  • Guardian/trustees for your children (if applicable). A named guardian will gain custody of your children and is entrusted with raising them. A trustee will manage any property or money they inherit. Typically, the guardian and trustee are the same person.

In the absence of a will, a court-appointed administrator will distribute your belongings to your spouse, your children and possibly other relatives. That leaves other people or organizations out of the picture. What if you don't have a will and don't have any relatives? Your assets could be handed over to the state, meaning your best friend or your favorite charity will be left empty-handed.

Something to note: Although they have similar names, your last will and your living will are not the same thing. A living will applies only when you're alive, and enables you to dictate your medical care if you become seriously ill or incapaciated and aren't able to express your wishes. A living will is sometimes referred to an advance directive.

What Are the Legal Requirements of a Will?

Wills are legal documents, and must be able to stand up to scrutiny since you won't be there to clarify your wishes. You must follow certain legal requirements in order for a will to be legitimate.

The specific rules for wills vary from state to state, but here are six common requirements:

  1. In most states, you must be at least 18 years old to set up a will.
  2. You must exhibit "sound judgment" and show "adequate mental capacity" when the will is written.
  3. The document must state that it is your last will and testament, and must include the date it was signed by you and where it was signed.
  4. To help guarantee the validity of your will, you must sign it in the presence of at least two witnesses.
  5. Your will must be in writing. In about half of the states, a handwritten will is legal.
  6. Your will must name a person who will act as an executor. This person will make sure your debts are settled and your assets are distributed in accordance with your wishes. The executor should be someone who's trustworthy. You actually can name more than one executor or even a backup executor. Without an executor, or if your named executor can't perform this duty, a court-appointed estate administrator will take over.

If your will doesn't meet all the requirements the law calls for, it may be considered invalid. If a will is invalidated, assets are considered intestate and treated as though there is no will whatsoever.

Who Needs a Last Will and Testament?

Anyone can have a will, and it might be in your best interest to have one even if you don't have much in the way of assets. For one thing, this document helps make sure what you have—whether it be a vehicle, a home or cash savings—ends up with the people or organizations you wanted to have them.

You should strongly consider a will if you have children who are under age 18. A will lets you name a guardian who can take care of your kids after you're gone. If you don't designate a guardian, and none of your survivors have parental rights, a court will figure out who gets custody of your children. Children of parents who die without a will naming a legal guardian can even end up in foster care.

In addition, a will can help maintain harmony among your relatives. How? It can prevent bickering among your family members over who can claim which belongings, such as your grandmother's coveted china set or your Aunt Helen's hand-me-down piano.

Your beneficiaries don't necessarily need to be people, either. You could name an organization such as a charity to gain possession of your assets, or a portion thereof, after you die.

How to Create a Last Will and Testament

Essentially, there are two ways to create a will: Write it yourself or hire an attorney to do it.

Fortunately, help is available to write a will if you pick the DIY path. Templates for wills typically are available with word-processing software, or you might decide to buy estate-planning software that includes a tool for building a will. Additionally, you might be able to use one of a number of online legal services to help you write a will. Among these services are Do Your Own Will, LawDepot, LegalZoom and Rocket Lawyer. Writing your own will is almost always cheaper than doing it with the help of an attorney.

Experts recommend that a DIY will be typed rather than handwritten. Handwritten wills cannot be validated in many states, and a typed will leaves less room for error in understanding.

You could also hire an attorney to write your will with you. An attorney won't determine where your assets will go once you die—you'll still do that part—but they can help you navigate the legal complexities of writing a will and ensuring its validity. If the will-making process seems too confusing or complicated for you, it might be best to consult an attorney who specializes in estate planning. Keep in mind, however, that attorney's fees can be costly.

Additional Aspects of Estate Planning

A will is just one part of an estate plan. This type of plan encompasses various aspects of your estate, which is the collection of your assets. The plan features several documents that explain how you want your financial and medical matters to be handled. Aside from a will, typical components of an estate plan are:

  • Living will: This outlines the end-of-life care you'd want in the event you are incapacitated.
  • Financial power of attorney: This equips someone to make financial decisions on your behalf if you aren't able to do so. These decisions could involve paying your bills or overseeing your investments.
  • Medical power of attorney: This enables someone to make medical decisions on your behalf if you aren't able to do so.
  • Trust: This financial mechanism holds your assets until they're passed along to the benefactors you identified in your will. Among other things, a trust can keep your will out of court and can provide tax benefits for your heirs.

It's also a wise idea to make sure the beneficiaries for accounts such as life insurance policies or payable on death accounts are squared away. Remember that in many states, beneficiaries named on an account will gain possession automatically regardless of what your will says.

The Bottom Line

A will decides who inherits your assets and who should take care of your kids after you're gone. It prevents additional pain by making sure these matters are settled in advance, and allows your loved ones mourn your passing in peace. It doesn't matter whether you write your will or a lawyer writes it for you, but it definitely matters whether you have one. This document can help you leave a long-term legacy in the wake of your death.