Last Will and Testament

The last will and testament is a major part of an estate plan and will ensure that the estate is settled according to your wishes. While there are other steps in estate planning, the will is the primary document to guide the process of settling an estate for most people. The official term for the creator of a will is a testator.

Unfortunately only 40%-46% of Americans 18 years old and older have a will. Although the percentage does rise among older adults, 24% of Americans ages 65 and over still do not have one.  Common reasons include procrastination, a perceived lack of need, a lack of knowledge about how to start, or that estate planning is too expensive.

You may use your will to express your sentiments toward loved ones and your hopes for their future, forgive debts, provide special instructions about care of minor children, form posthumous trusts, and to provide for your pets.

A last will and testament is a legal document you file with the probate court that is prepared while you are alive and describes how you want your assets to be handled after you’re gone.

  • Its purpose is to give information and guidance to your executor or trustee and beneficiaries.
  • It outlines what to do with your money, possessions, and other assets, such as being left to another person, a group, or donated to specified charities.
  • This could include larger assets like your home or other properties, or possessions of lesser value, like a family heirloom or personal items.
  • It may designate how and who will manage your accounts and interests.
  • If you have dependents, it will state your wishes for them, including who will act as legal guardian for minor children, dependent adults, or pets.
  • It needs to be signed, dated, and witnessed by two or three others — beneficiaries should not be witnesses.
  • Some states may require notarization, while many require each page to be initialed.
  • Your will may not be legally binding if it is not done properly or there is evidence of removed staples, which can make it appear that someone has altered your will.

Wills usually require specific language, some of which may be determined by your State’s rules. While the laws for making a last will and testament vary from state to state, but there are some basic requirements.

  • Your will must be made voluntarily without evidence of coercion, threats, or duress. 
  • Testamentary capacity means that you are at least 18 years old and of sound mind; the age limit in certain states is lower if you’re legally married.
  • Depending on the state you live in, your will should be either typed/computer generated or handwritten.
  • A few states allow videotaped records of the will signing to be used as a legal validation of the will.

You should include all the information needed to clearly identify, locate, and access all of your assets, including:

  • Financial accounts, digital assets, tax information, insurance policies, credit cards, vehicle loans, and mortgages;
  • Contact information for relatives and close friends to be notified of your death;
  • Where assets and possessions are located (property addresses, safe deposit boxes, home safe, storage units, electronic devices or the internet, etc.);
  • All your passwords, usernames, domain names, or other information needed to access digital information;
  • Keys and combinations; and
  • Instructions regarding your desires for burial, cremation, funeral ceremonies, organ donation, etc.

You should regularly review and revise your will when preferences or circumstances change.

Update your will as soon as possible for any of these events.

  • You get married, form a domestic partnership, or have a civil union;
  • The birth or adoption of a child;
  • The death of a beneficiary;
  • You are diagnosed with a terminal illness;
  • Estate planning laws in your state change or you move to a different state where the laws may differ;
  • You have a significant change in your financial status; and
  • Your divorce is finalized. After a divorce most states will allow you to revoke your ex-spouse’s rights in your will; some states do so automatically.

For further details about planning a will and its content see Start the Process, Crucial Estate Planning Steps, and Digital Estates.

Updated: January 2, 2024