Updated: December 12, 2022
Your will should include basic personal information such as your full name, birthdate, and address. You should include any other names you go by, as well as the names of your spouse and family members and their relationship to you.
The remainder of the content of your last will and testament usually depends on your personal and financial situation, and should include all of the assets owned solely by you. These are known as probate estate assets. Any of these assets not accounted for in your will are managed by the probate court, so you may want to consider a residuary or “leftovers” clause to prevent this. It may be as simple as “I leave my remaining assets to _________“.
It is important that your will reflects your wishes and clearly states in enough detail to be faithfully carried out. Sometimes the body of the will is not adequate and you can use additional measures to do this.
To be valid, your will must contain proper legal language called Testamentary Intent that declares that the document is in fact a will, and not something else. A sentence like “This is my last will and testament,” is typical, but it can be anything that shows your intent to pass along property after your death. If you are going to make your own will you can purchase programs, such as Quicken WillMaker & Trust, that guide you through the process of creating a Will or Trust or you can down-load state-specific will templates to help with this.
List the names and ages of everyone you want to designate as a beneficiary. This protects these assets from being distributed by the probate court according to state law rather than your preference. This includes your spouse, children, siblings, and anyone else you want to leave assets to.
In some states you can use a Beneficiary Designation Form. You may also consider a survivorship clause that states that an individual must survive you by a predetermined amount of days in order to receive any inheritance from you. You could also make a list of those who you specifically want to disinherit who could otherwise be entitled to some of your assets.
Be sure to revise your will when beneficiaries change to avoid leaving someone out or losing assets because someone has died.
You may want to have contingencies for the possibility of a divorce or something happening to one of your beneficiaries.
To account for the death of a beneficiary, you can either designate an alternate beneficiary or provide details on how your assets would be distributed to the remaining beneficiaries.
Another option is a “residuary beneficiary,” a person that you designate to receive everything left in the estate after:
The will designates a still-living person as the Executor or Personal Representative of the estate who is responsible for administering the estate.
Your will can designate the person or persons who will raise your child/children or serve as guardian for other dependents such as incapacitated seniors, developmentally disabled adults, and pets.
For purposes of your estate plan, assets are any property, money, investments, possessions, and debts you have partial or total ownership of. For the sake of your last will and testament, not all of these assets need to be listed. You only need to list assets that will need to go through the probate process, which generally includes any property, accounts, etc. that are owned by you alone. Other types of assets are not required to be listed.
For tax purposes, many assets may need to have their value assessed.
Make sure you include assets you may not have considered, such as cryptocurrency or stored biological material, and what you would like to do with them.
Be sure to include instructions for complicated items, such as certain tools or antique cars.
Be especially aware about items with legal restrictions, such as firearms.
List all probate assets
The inventory list for your last will and testament should include all of your major and minor property, accounts, and sentimental items. The list of assets also includes a list of your debts, many of which the estate may be responsible for. This may include a mortgage, car loans or leases, credit cards, student, personal, and other loans, and outstanding taxes.
It will be helpful to list the specific assets that will be used to pay debts and expenses, such as probate and costs and funeral; although the money will only be available after the estate is settled by the probate court.
Once completed, the inventory list becomes part of the will and is filed with the probate court that will be responsible for your last will and testament after you die.
Items to include in the inventory list.
For details of what is considered solely owned vs jointly owned see Joint Ownership.
Personal Property Memorandum
If it is mentioned in the will, it becomes a legal part of the will. Something like: “I am leaving a separate document from this will that disposes of some or all of my tangible personal property, that I direct to be incorporated into this will and followed by my executor. “
Since the personal property memorandum is an addendum to your will, it gives you the ability to list and easily update all of your property without having to change the entire will.
By being specific in this document, you can prevent your personal possessions from becoming a significant source of will contests or a contest of wills involving family members.
Important things you must make sure of.
You don’t need witnesses to watch you sign a personal property memorandum or to have your signature notarized.
Although part of the inventory list, you cannot include real estate or nonphysical/intangible property or business properties (in most states).
Keep it in the same place as your will, where your executor will be able to find it easily.
Digital assets memorandum
It seems like just about everything these days involves a computer or smartphone. With everything from email to digital music to online banking, we all have a digital footprint. Even some of your money may be digital, in the form of cryptocurrency.
Similar to the personal property memorandum, the digital assets memorandum (PDF) allows you to list and easily update your digital assets. It may be the most efficient way to guide your executor through this digital landscape.
Consider all the devices that need to be accounted for, some of which may be password protected. Common files or information may be stored on may include:
More daunting than the number of devices to look at is the number of locations and the amount and type of information that has to be dealt with. See the section The Digital World for details.
Most states have Digital Estate Planning Laws that allow your executor to access and manage this information.
Many people are not familiar with cryptocurrency and may have trouble understanding it. Cryptocurrency may not be recognized as a digital asset that can be passed on to beneficiaries and needs to be mentioned separately.
Cryptocurrency is a digital asset that can be traded or used to buy items in a similar way to a debit card. Similar to changing values for currency exchanges which are tied to the vagaries of the market, cryptocurrency can change in value or buying power over time.
Aside from making sure that everyone is aware of your cryptocurrency and its value, there are other steps needed to assure it is inherited.
Provide specific distribution instructions for all of your assets
It is important to be specific about the distribution of your assets, including gifts you want to be given to specific beneficiaries. While you could leave it up to the beneficiaries/heirs to decide, it may not be the best action — especially for items of sentimental value.
Be sure to revise your will when beneficiaries change to avoid leaving someone out or losing assets because someone has died. You may want to name contingencies for the possibility of something happening to one of the beneficiaries.
If you have specific gifts in mind, you will need to identify who will receive each asset. This includes gifts to individuals as well as the amount of any charitable donations.
Other documents that can record specific instructions include College Investing Plan Accounts, Joint Tenant with Right of Survivorship and Tenants by Entirety accounts, Annuities, Health Savings Account, Transfer on Death account, and Payable on Death account.
In addition to who will receive assets, you can be specific about how you wish your assets to be managed after your death.
You may use your will to forgive any outstanding debts owed to you.
If you are leaving anyone out of the will (disinheriting), specify this along with your reasons to reduce the chance of it being challenged. A surviving spouse is entitled to a certain share of the property in all states even if there is a will stating otherwise.