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Summary

A Will is a legal document which controls what happens to your property, and property in which you have an interest, after your death.

Regardless of your health, wealth, or marital status, it is important to have a challenge-resistant, legally valid, up-to-date Will. If you don't have a Will or it is invalid, your assets will pass according to what the state decides your wishes are. (This is known as dying "intestate.") 

It is possible to write a Will yourself, without the help of a lawyer. However, if you do, it is advisable to at least have a lawyer review it and oversee the execution to be sure it is done in accordance with the law of the state in which you reside and to help make it challenge proof. You won't be here to fix any mistakes.

After writing a Will, it is advisable to:

  • Make a photocopy without unstapling the Will. (If you unstaple it, there will be a question later about what pages are part of the original and which ones are not.)
  • Store the original in a safe place that is readily accessible. 
  • Check the content of your AWill periodically to be sure it is up-to-date. 
  • Consider telling your heirs what is in your Will. Experience indicates that telling your heirs about your intentions can eliminate problems afterward and help assure that your wishes will be carried out.  

If you already have a Will, review it to see whether it needs to be updated.

Following are links to information about the following frequently asked-about subjects:

For information about when people can expect to receive their inheritance, click here. 

NOTE: In addition to a Will, it is advisable to:

  • Write a list of "who-gets-'what", and to update it at least once a year.  A list of "who-gets-what" covers the items that don't have a lot of monetary value but may be immense sentimental or historical value. Without such a list, items you think of as valuable may end up in the trash or at the local thrift store, or even end up with the wrong person.
  • Write a List of Instructions which gives people practical information in case you become incapacitated or die. For example, the List tells people where your property is located, and how to maintain it.
  • Wite an Heir Game Plan. It provides people a practical guidelines of what to do in the event of your death.
  • Make sure your pets are taken care of if you don't specifically include them in your Will.
  • If no one will be living in your home immediately after you die, ask a trusted person to look after the property while it is vacant. Empty houses invite vandalism. Damage from a storm or leak which isn't taken care of can be devastating. Don't rely solely on Homeowners Insurance.
  • Consider writing an Ethical Will to pass on your values
  • Be sure that someone knows where you store your passwords for your computer, mobile devices, online accounts etc. You can store your passwords online through such services as Legacy Locker offsite linkPlanned Departure offsite link and SecureSafe offsite link

What If I Want To Write My Will Myself?

Legally you do not need a lawyer to write a will. However, we suggest that you do not write your own Will. If you do, at least have an attorney review it.

 Even though there are a lot of self-help books and good software programs available, a technical slip-up could make your Will useless. A lot of time and money could be spent determining if a document is a valid Will, and, if so, what it means.  If cash is a problem, there are lawyers who will write a Will for low cost or for free.

That said, here are some situations where the risk of writing your own Will is lower:

  • Your estate is small and simple. For example, your only assets of value are $5,000 in your savings account which is in your name, and a few older items (perhaps antiques). You expect to leave everything to your spouse, who will also be the administrator of your estate.
  • You do not have a living spouse. You want to leave everything to your children equally, and your estate is well below the exemption for federal estate tax purposes.  
  • You have no assets which are subject to probate, or the amount is minimal. Probate assets are assets that pass through a Will. Assets which are not subject to probate include those which are owned in a joint tenancy with a right of survivorship, life insurance proceeds, or assets that pass to someone else due to other operation of the law, such as by a beneficiary designation. To learn more, see Will Substitutes.

Even if your situation is in fact "simple," be cautious. You will not be here to fix mistakes or explain anything that is not clear. Check your state's requirements and follow them precisely.  It is definitely better to err on the side of safety. For example:

  • When two witnesses are required, use three.  
  • When identifying your beneficiaries, be precise by adding to their names their relationship to you (e.g. my wife, Carol Brown or my niece, Kathy Woodside rather than just naming the people) and a current address which should be stated as “currently residing at.…” 
  • List alternates in the event a person named in the will predeceases you, or the entity to which you leave an asset goes out of business.
  • If you need to research your state’s law, check Cornell's law library at: http://library.lawschool.cornell.edu/. offsite link In addition, most law libraries in county courthouses are open to the public. Librarians in law libraries are generally helpful to non-lawyers who wish to learn how to do their own legal research. Ask them how you can locate the state’s statutes concerning wills.

It is advisable to consult an attorney rather than writing your own will if you:

  • Want to disinherit a spouse or children.
  • Have infirm or incompetent heirs.
  • Own a small business.
  • Want to leave a gift that is conditional on some event.
  • Have mutual wills with your spouse but want to change your dispositions or assets in a trust.
  • Anticipate a challenge to your will (especially if it could be argued that you are not of sound mind or are under undue influence).
  • Have complex ownership or business arrangements.
  • Own real estate in more than one jurisdiction.
  • Have minor children.
  • You or your spouse is not a citizen of the U.S.
  • Have piece of real property located in another state.
  • There is any complication at all in either your assets or how or to whom you want your assets distributed.

Popular will making programs

  • Quicken Willmaker
  • Legacy Writer
  • Legal Zoom
  • Rocket Lawyer

The reasons to involve an attorney include the following:

  • If you write the document incorrectly, or it is not executed as required by the law of the state in which you reside, you won't be able to correct mistakes since the mistake won't come to light until it's too late. The entire document may be declared to be invalid so that you will die without a will. That means your assets will pass under the state laws of intestacy which are cookie cutter laws that are not likely to pass your assets the way you would have. In addition, the person who adminsters your estate will be appointed by the court. That person may just as well be a friend of the court's as a relative or friend of yours. The person will be paid for his or her services from your assets.
  • Will writing programs do not help make sure that all your assets are properly coordinated. 
  • You may skip areas or misinterpret instructions since you are not familiar with the law or what is normally in a will.
  • A professional's advice can save money if your estate will be subject to estate taxes. Even if there is no federal tax, state and local taxes can be substantial.
  • A lawyer:
    • Can help you think through your wishes and how to best accomplish them. 
    • Make sure that the formalities required by your state to make a document into a valid Will are followed. For instance, as a general matter, one witness is not enough. Not can a beneficiary be a witness.
    • Help make your Will challenge proof. In some states, a Will is presumed to be valid if the execution is supervised by an attorney. Even if it is not presumed to be valid, it is more likely that the appropriate procedure will be followed when executing the will under a lawyer's supervision. (For more about making a will challenge proof, click here.)

What You Can And Cannot Do In A Will

WHAT YOU CAN DO IN A WILL

In a legally valid Will, you can:

  • Name your beneficiaries including who gets your property, and how much of it they get. (You can even make provision for a pet - though not by leaving money directly to the pet).
  • Name a Guardian for your minor children. To learn more, see How To Choose A Guardian For Children.
  • Name a Personal Representative/Executor: This is the person who will administer your estate. For more information, see Choosing a Personal Representative/Executor.
  • Designate what will happen to your assets if both you and your spouse die at the same time.
  • Designate how you want your taxes and debts

WHAT YOU CANNOT DO IN A WILL

While there are many things you can do with a Will, there are also many that you can't. Here are some of the things you won't be able accomplish in your Will:

  • Leave Funeral Instructions: Wills often won't be read until days or weeks after a death. Sometimes, they can't be located immediately -- although this shouldn't be a problem if you follow our suggestions about Storing Your Will. Instead, prepare separate written funeral instructions. Preplanning saves a lot of money and emotional stress at a difficult time. To learn more, see Funerals and Funeral Planning.
  • Leave Money to Pets: Contrary to popular belief, you cannot leave money to pets. You can leave money to a person or entity to care for your pets. Some states even allow you to set up a trust for pets. For more information, see Planning For The Care Of Your Pets. NOTE: Be sure to arrange for immediate care for your pet.  Wills are not effective until they go through probate.
  • Put Conditions on Gifts which are against social policy: You can't put a condition on a gift which your state considers to be against social policy -- the way society thinks people should and should not behave. For example, it may not be permitted to provide that your house goes to your daughter if she doesn't get married, or to your son if he gets a divorce, or to a friend if she changes her religion.As another example, you cannot leave money for an illegal purpose or to an illegal organization. However, you can generally make gifts contingent about things states find acceptable, such as a gift to your grandson if he goes to college. If you want to make a conditional gift, be sure to check first with a lawyer. For tips on finding a lawyer, click here. For choosing one, click here.
  • Reduce Estate Taxes: Wills generally are not effective in reducing your estate taxes. There are alternatives for reducing estate taxes. See Gift and Estate Taxes.
  • Name a Beneficiary for:
    • Property held in joint tenancy with a right of survivorship with someone else. In these situations, the property automatically passes to that other person no matter what your Will says. To learn more, see Will Substitutes.
    • Property in a living trust. The trust controls what happens to the property in the trust -- not your Will.
    • Proceeds of a life insurance policy for which you've already named a beneficiary, unless your estate is the beneficiary.
    • Money in retirement plans, unless you name your estate as beneficiary of the retirement plan.
    • Money in a bank account which is registered "payable on death" to, or "in trust for"someone else.
    • NOTE: 
      • For the same reasons that the above items cannot be affected by your Will, they can be used as ways to avoid probate. See Probate and Avoiding Probate.
      • For additional legal consequences which flow form the way an asset is owned, see the next section.
  • Disinherit a Spouse: You generally cannot legally completely disinherit a spouse. See Writing A Will.
  • In some states, you cannot disinherit a child. If your state does permit disinheriting a childe, and you do not mention it in your will, the child may still have a claim against your assets.

How To Locate An Attorney To Write Your Will

You can locate a lawyer through your local disease specific non-profit organization, through referrals from friends, or by contacting:

To learn more about selecting the best lawyer for you, see Choosing An Attorney.




What Is A Will?

A Will (also known as a Last Will and Testament) is a legal document that gives you control over what happens to your property after your death, including who receives your assets and who will make sure your wishes are carried out.

A will is not valid until it is declared by a court known as a probate court to be valid. Before a will is declared valid, people who would receive your property if you died without a will are usually given a chance to challenge the validity of the will. A lawyer is not necessary to challenge the validity of a will.

Does My Existing Will Need To Be Updated?

To determine whether you have to write a new Will, or amend your existing Will, consider:

  • Are all of the beneficiaries still alive?
  • Have you changed your mind about any beneficiaries?
  • Do you still have assets you specifically left to someone?
  • Has the size of your estate changed substantially?
  • Are the witnesses available or is the Will self effectuating? (A Will is self effectuating if the witnesses signed an affidavit describing the execution of the Will and it is acceptable proof about a Will in the state in which you live.)
  • Is the Will so old that the age may raise questions about your current intent?
  • Did you get married, or divorced?
  • Have there been other changes in your life that may not affect your Will, but should be noted in any event (e.g. now you have a step child but you don't want to leave him/her money)?

What If I Die Without A Will? (Intestate)

Each state provides a will for you IF you do not have a valid will. These laws are called "intestacy" laws because when a person dies without his or her own Will, the person is said to have died 'intestate.' 

Intestacy laws provide what happens to your assets if you die without a valid Will. 

Intestacy laws seldom provide what you would want. For example, one state's intestacy law dictates that your spouse's share is to be equal to that of each of your children's. This might not be so bad in theory. But, what if you had nine children? Each of your children would receive 10% of your property and your spouse would also only receive 10%!

Intestacy laws don't make any provision for people other than the traditional family to whom you might want to leave money, including significant others to whom you are not married, friends, more distant relatives and charitable organizations.

To learn about the intestacy laws in your state, see: http://mystatewill.com/statutes/statute_links.htm offsite link

Besides leaving your property in a manner you desire, there are other reasons to have a Will, including:

  • With intestacy, the court appoints the person to administer your estate. If you have a Will, the court generally follows your wishes about who that person will be. If you do not have a Will, the person the court selects to administer your estate may not have the best interests of your heirs at heart, will not know how to fill in blanks according to who you are, and will probably have to furnish a bond to assure his or her duties are carried out honestly. The cost of the bond will unnecessarily increase the cost of administering your estate.
  • If your child's other parent is unavailable or unfit, the court will determine who will be the guardian of your children with no input from you. Often, this will be a person you would not have selected and may be someone who does not have the child's best interest at heart.
  • If no relatives are located, your assets will go to the state!

How Much Does It Cost To Prepare A Will?

A Will prepared by a lawyer can range in cost from a hundred to a few thousand dollars, depending on how complex it is. If cost is an issue for you, ask your local disease specific non-profit organization for assistance. Many have lists of lawyers who will prepare a Will for free.

You can also consider preparing a Will yourself. You can purchase a form from a stationery store or a software program to create a computer-generated Will. If you use a form, be sure that the form you use is legal in your state. Before you write a Will yourself, read the next section.

What Makes A Will Valid?

To be valid, Wills must follow the law of the state in which you reside.

Generally, a Will must include the following:

  • The person who writes the will must be legally able to do so. This generally means that the person:
    • Must be at least 18 years old.
    • Must be of sound mind which generally means that you understand the nature and extent of your assets.
    • Must not be under the influence of anyone who dictates what goes into the Will.
  • The Will must be legible. Generally Wills are typewritten or computer generated, but they may be handwritten. In some states they can even be totally handwritten. These Wills are known as "holographic" Wills. We recommend against the use of holographic Wills. Even if your state is one of the few that allows them, you will not be here to make corrections if you make a mistake that could make your Will void.
  • Your signature and the date you signed.
  • The signature of at least two people who are not named as beneficiaries in the Will who witness your execution of the Will. Three witnesses are required in Vermont.
  • Notarization of your Will is not legally required. However, in many states if your witnesses sign a sworn statement before a notary public at the time the Will is executed, it will be easier to prove the validity of the Will after you die. See How To Protect Your Will Against Challenges.
  • For requirements in your state, see the document in "To Learn More."
  • A Will does NOT have to be filed with a court or government agency while you are alive. See Storing Your Will.

A Will is determined to be valid through a judicial process known as Probate.

What If I Want To Leave Money Or Another Asset To A Minor?

If any of your heirs are minors as defined by the laws of your state (usually a person under age 18, although 21 is not uncommon), the court will appoint a guardian to hold or manage any money or property left to the child. You can influence who the guardian is by a Pre-Need Declaration of Guardian. As an alternative, in your will you can nominate the person or persons you would like the court to appoint as your child’s guardian and an alternate. While only the court can appoint a guardian, the will can be used in court as proof of your wishes. 

An alternative which can provide flexibility is to include trust provisions in your will to hold your child’s property. The trust would start on your demise and continue until your child reaches a specified age that you determine. It also allows you to give the trustee(s) instructions about how you would like the money invested and spent. This idea also works for anyone you want to leave assets to who isn’t “good with money.”

Whether you use a guardian and/or a trustee, in a side document, not in the will, write guidelines that are important to you for the person who will have legal responsibility for your child. 

As an alternative to a guardianship, many states have adopted the Uniform Transfers to Minors Act which permits you to leave your property to a named custodian for the benefit of your children. Property left to the custodian will be managed and distributed in accordance with the detailed rules set out in the Code. The property will be distributed to the child at whatever age you specify in your will, but generally not later than the child’s birthday specified in your state’s law. If you retain any control over the account at your death, and the child has not reached age 21, the account will be included in your estate for estate tax purposes.

Legal Consequences Of Various Forms Of Ownership

Following is a chart showing the legal consequences of various forms of ownership. The consequences noted will become clear as you read through the remainder of the chapter.

  

LEGAL CONSEQUENCES OF VARIOUS FORMS OF OWNERSHIP

 

FORM OF

OWNERSHIP 

Subject

to

Probate 

Subject to Federal Estate Tax 

Control during your lifetime 

Can Pass By Will

Subject to claims of creditors before death

Subject to claims of creditors after death

Available to

beneficiaries

Asset solely owned

Yes

All

Full

Yes

Yes

Yes

Delayed

Asset owned jointly by spouses

No

One-half

Divided

No1

Yes

No2

Immediate1

Asset owned jointly by others

No1

All3

Divided

No1

Yes

No1

Immediate1

Assets in bank account (Totten) trust

No

All

Full

No

Yes

No

Immediate

Assets in custodial account for minors

No

None4

 

None

No

No

No

Immediate

 

Life insurance owned by insured

No6

All

Full

No6

No

No6

Immediate

Life Insurance Owned by other than insured

No6

None8

None

No

No

No6

Immediate

Life insurance payable to deceased’s estate

Yes

All

Full

Yes

Yes7

Yes9

Delayed

Assets in a revocable living trust

No

All

Full

No

Yes

No

Immediate5

Assets in an irrevocable living trust

No

None

None

No

No

No

Immediate5

                 

 

1 Provided that the joint owner survives.

2 Unless debt was incurred by both joint owners.

3 Except to the extent your estate can prove that a surviving joint owner contributed to the acquisition or improvement of the property.

4 Unless you are a custodian as well as a donor.

5 Subject, however, to all of the terms of the trust, which may include a provision postponing distribution of the property.

6 Provided that a beneficiary designated in the insurance policy survives. Otherwise the proceeds become a part of the probate estate.6

7 Limited to the cash surrender value of the policy.

8 Unless the policy is assigned to another within three years of the date of death.

9  Some states expose revocable trust assets to creditors’ claims.

The chart is from THE EXECUTOR’S HANDBOOK by Theodore E. Hughes and David Klein, Copyright © 1994 by Theodore E. Hughes and David Klein. Reprinted by permission of  Facts On File, Inc.

 




What If My Debts Exceed My Assets?

  • In general, only your estate is liable for the debt. Your surviving family members and heirs are not liable unless they have personally taken on the debt. For instance, if an heir is a co-signer or a guarantor on a loan, your death will not change their obligation to repay it. There may also be liability if you were provided necessities such as food or clothing.
  • While there is no obligation to do so, your heirs can work out an informal agreement with all your creditors.
  • If there is no informal agreement with creditors, it will be up to a court rather than your heirs to determine which creditor gets paid and in what priority.

What To Do If You Write Your Will Yourself

If you do write a Will yourself: Ideally, ask a lawyer to read it to be sure it is okay. Then execute the will under the supervision of a lawyer to be sure it follows the specifics of the law of the state in which you live. A mistake in a will cannot be fixed later.

If this doesn't work for you:

  • Be sure to follow all the rules of the state of your legal residence for what needs to be included in a valid will as well as the proper procedure for executing a Will. (For example, a person who will receive any benefit under your Will should not be a witness). 
  • Understand that it may be difficult to challenge-proof a Will when execution is not supervised by a lawyer. (Click here for information on how to challenge-proof a will).
  • When executing the will, ask the witnesses to your will to sign an affidavit which they sign in the presence of a Notary Public that includes at least the following:
    • The procedure used when executing the will
    • That you asked the people who ultimately acted as witnesses to witness the exectuion of your will
    • That they were one of the witnesses. 
    • That the witnesses were all together with you during the entire procedure
    • That you appeared to be of sound mind, understood the nature of your property and the identities of the benficiaries.

Following is a sample affidavit which was prepared for a resident of the state of New York. Check your local law to find out what should be included in your state.

AFFIDAVIT OF ATTESTING WITNESSES

STATE OF NEW YORK )

COUNTY OF _____________ )

Each of the undersigned, individually and severally being duly sworn, deposes and says:

The within Will was subscribed in our presence and sight at the end thereof by ___________ , the within named testator, on the ____ day of ______________, 20__ at ___________________________________.

Said testator, at the time of making such subscription, declared the instrument so subscribed to be his Last Will and Testament.

Each of the undersigned thereupon signed by name as a witness at the end of said Will at the request of said testator and in his presence and signed and in the presence and sight of each other.

Said testator was, at the time of so executing said Will over the age of 18 years and, in the respective opinions of the undersigned, of sound memory and understanding and not under any restraint or in any respect incompetent to make a Will.

The testator, in the respective opinions of the undersigned, could read, write and converse in the English language and was suffering from no defect of sight, hearing or speech, or from any other physical or mental impairment which would affect his capacity to make a valid Will. The Will was executed as a single, original instrument and was not executed in counterparts.

Each of the undersigned was acquainted with the said testator at such time and makes this affidavit at his request.

The within Will was shown to the undersigned at the time this affidavit was made, and was examined by each of us as to the signature of said testator and of the undersigned.

The foregoing instrument was executed by the testator and witnessed by each of the undersigned affiants, under the supervision of David S. Landay an attorney at law.

______________________________ (Signature)

______________________________ (Print Name)

 

(address)

______________________________ (Signature)

______________________________ (Print Name)

 

(address)

______________________________ (Signature)

______________________________ (Print Name)

 

 

The foregoing instrument was executed before me, a Notary Public in and of the state of ___________________ this _____ day of _______, 2011, by _________________________________, ____________________________, and ________________________.

 

SEAL Signature: ________________________

Name: _________________________

Commission No.: ___________________

My Commission Expires: _____________




What To Do If Personal Property Is Left To Be Divided

Dividing up personal items can lead to animosity or even to relationship breaking discussions. You can help prevent a problem by discussing with  your heirs a system to make it easier. Following are a few tips from Money Magazine  to consider:

  • Ask that a discussion about dividing personal items be postponed until after emotions have a chance to settle and everyone can be together in person.
  • Leave spouses and partners at home. The fewer people in on the discussion, the better.
  • Agree that "this won't tear us apart."  Also consider agreeing that if someone says something hurtful, that you will all agree to forgive each other.
  • Ask each person to identify what items are important to them. This helps identify which items are subject to discussion.
  • Decide on a process. For example, take turns picking items. One way to do this is to create a list of who goes first, second etc. Second round you can reverse the list, so the last person goes first in the next round.
  • If items have real value, get an appraisal. Whoever wants the item can pay the other heirs for their shares through a reduced inheritance or cash. If no one wants the item, it can be sold and the proceeds split.
  • If there is an item which two people want and neither party can agree, consider selling the item. This way both people feel the same sacrifice. 

What Should I Do About OnLine Accounts?

All online accounts are governed by the site's Terms of Service. 

To determine what to do about each account, consider the following steps:

  • First: Create an inventory of your accounts. The simplest way to do this is to write down all the websites you visit in a month that reqwuire log-in information.
  • Next: Write down all the sites in a secure document on your computer or in a notepad that you can store in a safe place. Be sure the people who will need to know will know about the file by putting a note with the original of your will and also letting the executor know where the file is. (Do not include the information in your will because a will becomes a public document once it is probated.) Include in the file the following information:
    • Name of the website
    • User name
    • Password
  • Check the Terms of Service for each account to determine what happens to the information in the account upon death
    • Instead of having to read through the entire Terms, look for a heading such as "License" (as in your are only granted a license to have the account during your lifetime) or "Death" or "Heirs"
    • Do not be surprised if you find that the account is closed upon death. 
    • If the acccount permits you to name a beneficiary, name one.
  • If you have an e mail account, unless the account allows you to name a beneficiary, write a letter to the site including a statement that you want your (executor)(specific heir) to be able to access your e mail account. Ask a witness to witness your signature. Store the letter in the same place as the other information about your websites.

Should I Speak With My Heirs About What Is In My Will?

In a word: "Yes" - it is advisable to talk with your beneficiaries about your will. Telling your heirs what to expect heads off fights and hard feelings.

Talking about your plans also provides a chance to talk with your heirs about what you hope they will do with their inheritance.

If there is an asset such as a business or real property, you also can pass on advice about how to run the business or keep up the property.




What Should I Do After I Execute A Will?

Where To Store Your Will

People tend to store a Will in a safe deposit box. However, safe deposit boxes are sealed upon death and generally require a court procedure before they can be opened.

If you store the original of your Will with the lawyer who helped with it:

  • The document will be safe.
  • The document will be available immediately.

If no lawyer was involved, consider storing your will in a fireproof box in your home. 

No matter where your Will is stored, let the person who will be responsible to carrying out the terms of the Will know where it is stored.

Updates

Check your Will periodically to be sure it is up-to-date and continues to reflect your wishes. Make a note in your calendar to review your Will at least once a year.

If you want to make a change, you don't have to rewrite the entire Will. You can make the change by an amendment known as a "Codicil." A Codicil needs to be executed with the same procedure as required for the proper execution of a Will.

Revocation

A Will can be revoked at any time. 

You can revoke a Will by destroying it, or by revoking it in writing. For example, when a lawyer drafts a Will, there is usually a provision in it that all previous wills are revoked.

To avoid confusion, destroy the original of the old one when you write a new will. (NOTE: If there is a question about your mental capacity to write a new will, you can keep the old will and state in your new will that if there is a problem, the old will will govern. That way you won't die without a will if a challenge to the new will is successful.)