Last Will & Testament

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A last will and testament is the most commonly used estate-planning tool, though it is often used in conjunction with other devices, such as a trust. It is a legal document, and through it, you can accomplish many things – you can give away your belongings, name a guardian for your children, cancel any debts owed to you by another person, transfer property into an existing trust, or designate a trusted person to administer your estate (called an “Executor”). If you care about what happens with your property when you die, even if you own only a small amount of cash and few belongings, then a will can reflect your wishes after you die.

Creating Your Will - The Basics

Why should I create a will?

You should have a will because it is an effective way to control what happens when you die. Without one, you are said to have died "intestate" and your property passes pursuant to "intestate succession," which is a statutorily prescribed method of distributing your belongings. In other words, the state will decide who receives your property, without any regard as to what you would have preferred. Your house may fall in the hands of a relative you have never met, when you would have given it to your unmarried partner. Perhaps you would have given your property to a good friend or a charity, but without a will it would go to your family. Or maybe you don’t want your children to share your estate equally, as they would if you die without a will. To avoid these types of situations, it would be to your benefit to create a will to guarantee that your property passes to the people that you select in the manner that you desire.

Can anyone make a will?

Generally, yes. But there are requirements set forth by state law that must be met for it to be valid. The person making the will (called the "testator") must be of a certain age (usually 18) at the time the will is made. If the will is created while the person is a minor, it is invalid regardless of when death does occur. He must also have testamentary intent (i.e., he wants that particular document to be his will). Additionally, the testator must have testamentary capacity. This means that he is of sound mind (i.e., mentally competent and not suffering from any mental illness) and understands that he is creating a will, knows the extent of the property he owns, knows the people that are related to him, and understands the estate plan that he is creating. If any of these requirements are not met, the will is invalid and the property passes as if it was never created.

The above requirements must be satisfied at the time the will is made. Anything before or after that point in time will not cause the will to be invalid. For example, if you become afflicted with a mind-disabling illness between the time you make your will and die, it does not matter – as long as you were mentally competent when you made your will. Or if you were 14 when you made your will, but you die at age 21, your will is invalid because you were not of the minimum age when you made your will.

I’m only 25.  Am I too young to worry about a will?

No. You need to plan for the unexpected, and having a will prepared in the event of your untimely death is crucial. Regardless of your age, you probably own property and care about what happens to it if you die unexpectedly. Or you may have young children who need to be cared for if you die. You need to decide what you want to happen in these types of situations, or you leave the task up to the state and the results may not be to your liking.

Can I create a will even though I have a serious illness?

Yes; in fact, it's advisable that you do so provided you are capable of understanding the nature of your act. If your illness in any way affects your mental capacity, the will can be invalidated because you lack testamentary capacity.

What is required for the will to be valid?

Every state sets forth a few general criteria for the will to be valid, commonly known as "requirements for due execution." Generally, the will must be written (handwritten or typed), signed by the person making it, and signed by at least two (and sometimes three) competent witnesses. You must sign in the presence of your witnesses and they have to sign in your presence. Remember that the testator also has to be a certain age and of sound mind.

Can I sign my name anywhere on the will?

It depends on the law in your state - some require that you sign at the end of the will, while others allow you to sign anywhere on the will.

My hands shake very badly.  Is my will valid if someone else signs my name for me?

Yes. This is called a "proxy signature" and is valid as your signature as long as it is done pursuant to your request and the person signs your name in your presence.

Do I have to sign my full name for the will to be valid?

Technically, no. For purposes of meeting the signature requirement, any mark, scribble, initial, or otherwise made by you on the signature line is acceptable as your signature as long as you intended the mark to be your signature. That said, it is highly recommended that you sign your full legal name in order to avoid any problems when the will is offered for probate.

During my will signing ceremony, my attorney asked the witnesses to sign the will before I signed it. Do I have to redo the will since I did not sign first?

No. The will and the signatures to it are valid as long as they were done during the same execution ceremony. The law does not require that you actually sign your name before the witnesses sign theirs, as long as you do so within a reasonable time after they sign theirs.

My neighbor asked me to be a witness to her will. I signed a folded copy, which showed only her signature; she did not show me any of the contents of the will to prove that I was in fact signing her will. Is my signature valid?

Yes. In most states, your purpose as a witness is to attest to the testator’s signature, not to the document itself. Therefore, the signature is all you need to see. You do not need to know the contents of the will for your signature as a witness to be valid. In fact, you do not even need to know that you are signing her will. Your signature is valid even if she told you that you were witnessing the deed to her house. (But check your state’s specific laws - a few do require that the testator declare the document to be her will.)

My neighbor had already signed her will before the other witness and I arrived. Doesn’t she have to sign it in front of us?

Generally, yes. But if she already signed the will, she can "acknowledge her signature" in front of both witnesses, and the result is the same as if she had signed her name in the presence of the witnesses. To acknowledge the signature simply means that she claims that the signature is her own.

I executed my will 10 years ago, and at that time both of my witnesses were sane and healthy. However, one of my witnesses now has been diagnosed with dementia. Will her current condition cause my will to be invalid when I die?

No. The signature of your witness is valid as long as she was competent when she signed the will. Her mental condition at any time before or after she signs the will does not affect your will’s validity.

What information should my will contain?

At a minimum, your will should include your full name and address, your signature, and the signatures of your witnesses. It should also list all of your assets and the name and address of the beneficiary who is to own each particular asset. If you have any minor children, it should designate a guardian to care for them. You should also name an executor, who will help settle your estate during the probate process.

TIP: Do not include funeral instructions in your will. It may not be found for days or weeks after your death.

How do I name a guardian for my minor children in my will?

It’s very simple. You just insert a clause in the will that states who you choose to raise your children if you die. Be sure to name a guardian for each minor child (you should choose the same person for all of them), and you should consider naming an alternate guardian in case your first choice refuses or is unable to accept the responsibility. In selecting the guardian, be sure to consider, among other things, the age and health of the guardian, whether your child will have to move to a new state, and whether the guardian can financially care for your child.

My attorney wants me to include a "self-proving affidavit" with my will. What is that?

A "self-proving affidavit" is a notarized document signed by you and your witnesses (usually during the will execution ceremony) that verifies that you signed your will in the presence of your witnesses and that they in turn signed in your presence, and that they believed you to be competent to execute your will. The affidavit allows your will to stand on its own based on the signatures of you and your witnesses. What this means is that your witnesses won’t have to testify as to your will’s validity when you die - the affidavit sufficiently speaks to the will’s validity.

What kind of property can I give away through my will?

You can give away any property that you own when you die, or in which you have an interest at death. This property is said to comprise your estate, and includes land, homes, cars, bank accounts, stocks, any debts owed to you, personal belongings (such as jewelry, furniture, books, etc.), and any interest you own in property as a tenant in common. However, you cannot give away “nonprobate property,” which is defined as property that passes on your death by some means other than your will or intestacy. The following are common forms of nonprobate property that cannot be given away in your will.

Joint tenancy property with right of survivorship When you die, your share automatically passes to the surviving joint owner. If you try to give it away in your will the gift is ineffective.

Tenancy by the entirety property This is property given to a husband and wife and carries with it a right of survivorship and automatically passes to the surviving spouse.

Proceeds from life insurance policies, IRAs, pensions, and employee benefit plans These are governed by your contract with the insurance or financial company, and descend to the beneficiary that you named in that contract. If you attempt to give it to someone else in your will, it is ineffective.

Lifetime gift to another (called "inter vivos gift") Since you gave the property away when you were alive, you can’t give it away again on your death - you no longer own it so it’s not in your estate.

Property placed in a trust The terms of the trust control how the property is to be distributed.

Community property You can give away only the one-half share that you own; the other one-half belongs to your spouse.

Pay-on-death accounts (also called "Totten trust accounts") When you die, the proceeds pass to the person in whose favor you created the account.

Who can be a beneficiary in my will?

A beneficiary is a person or organization to whom you leave property in your will, and can be anyone you want. You can name as beneficiary your mother, next door neighbor, employee, favorite charity, or a person you’ve never even met. It’s your property and you can leave it to whomever you like. Note that from a legal standpoint, a beneficiary is not the same as an heir. A beneficiary is a person you name in your will to receive property and can be anybody. An heir is a person who takes your property under intestate succession if you die without a will (or without having disposed of all your property) and usually is a member of your family, however remote.

TIP: Be sure that you clearly identify the beneficiaries to avoid any confusion. For example, if you have two nieces named Sarah, specify which Sarah you are referring to in your will. The court does not like to guess as to your intentions.

I want to leave a sum of money to my pet poodle? Can I do that?

No. You cannot leave property to a pet because a pet is considered to be property itself. But that doesn’t mean that you can’t provide for your pet’s care beyond your death. One option is to leave a sum of money to a trusted individual with the requirement that the money be used for your pet’s care. Another option is to set up an honorary trust in favor of your pet (see Trusts section in this chapter).

Can one of the beneficiaries in my will also be a witness to the will?

Yes; your will is still valid if a beneficiary acts as a witness. However, by acting as a witness that beneficiary will lose all or part of the gift in the will, subject to two exceptions. If there were more witnesses to the will than required by law (three witnesses when only two were required), she will receive her entire gift. If she would have taken a portion of your estate if you had died without the will (by intestacy), she is entitled to either the gift in the current will or her intestate share, whichever is smaller.

TIP: It’s best if you choose witnesses who are "disinterested," meaning that they have no stake in your estate when you die. Good choices for witnesses include your attorney’s secretary, a trusted friend or neighbor (of course, provided they are not left anything in your will), or perhaps an employee.

What do I need to consider when writing out the gifts in my will?

First, take time to think about who you want to include in your will and what property you want to give them. When it comes time to write out the gifts, describe each beneficiary and item of property with exact specificity. You do not want any confusion when the will is being probated. For real property, state the address and any other descriptive information. For personal property, describe the item and state where it can be found. Your beneficiaries should be identified by full name and you should include their addresses. It might also be a good idea to name a contingent beneficiary for each gift in the event the original beneficiary dies before you or rejects the gift, in which case the gift either fails and passes under intestacy or passes to the beneficiary’s descendants under the anti-lapse statute (if she is related to you).

TIP: Before drafting your will or consulting an attorney, make a list of everything you own along with the name of the person to whom you want it to belong. Doing so will help prevent you from forgetting to make any gifts.

What types of gifts can I make?

You can make four types of gifts: specific, demonstrative, general, or residuary. The gift will be either real property or personal property. Real property includes any land that you own, including any structures on the land, such as your home and garage, and any interest you own in gas, oil, or minerals. Personal property is everything else – both tangible and intangibles. Examples of personal property are: cash, stocks, bonds, clothes, furniture, jewelry, automobiles, and bank accounts.

Type of gift Definition Example
Specific gift: A gift of a specific item of property. "My vacation home in Aruba to my daughter."
Demonstrative gift: A gift of money to be paid from a specific source. "$25,000 to my sister, to be paid from the proceeds of the sale of my business."
General gift: A gift of money paid out of your estate (but not necessarily from a specific source). "$15,000 to my brother."
Residuary gift: A gift of the balance of your estate that is not otherwise disposed of. "The rest and residue of my estate to my next door neighbor."

Can you explain how a residuary clause operates?

A residuary clause devises the remainder of your estate after all claims have been paid and all other gifts in the will have been distributed. It is a “catch-all” clause because it includes anything you own (other than nonprobate property) that is not specifically given to someone else in your will, including any property you acquired after the will was written and any gifts that fail for some reason. Some examples are:

  • You have clauses in your will giving away your house, car, jewelry, and clothing. However, you did not have specific clauses with respect to your computer or furniture. The computer and furniture fall into the residuary clause and pass to the beneficiary of your residuary clause.
  • After you write your will, you inherit $50,000 from your aunt. You place the money in a bank account and leave it there until you die. The money falls into the residuary estate and passes to the beneficiary.
  • You leave your extensive book collection to your college buddy, but he dies several years before you. The gift to him fails and you don’t revise your will to give the books to someone else, so they fall into the residuary clause and pass to the beneficiary.

TIP: Be sure to include a residuary clause in your will because it avoids any partial intestacy. If there were no residuary clause in any of the above examples, the property would have to pass according to your state’s intestate laws because it was not disposed of by any other means.

Where should my will be kept?

You should keep your will in a safe place where it won’t be subject to damage and won’t be lost, such as a safe deposit box. It’s a good idea to keep a copy, if not the original, with your attorney.

If your executor or relatives have to search for your will, it will cause problems and delays in probating your will and your beneficiaries will have to wait before receiving their gifts.

Checklist: What you need to consider when making your will.

  • Did you sign your will?
  • Does it contain the signatures of the appropriate number of witnesses required by your state?
  • Did you clearly identify all the property and all the beneficiaries so there is no confusion?
  • Did you remember to dispose of everything that you own in order to avoid any partial intestacy
  • ?
  • Are you anticipating any change in a family relationship? If so, be sure to provide for your new spouse or child, or remove a soon-to-be ex-spouse.
  • Did you name contingent beneficiaries in case the original beneficiaries can’t take their gifts?
  • Did you include a residuary clause?
  • Did you name a guardian for any minor children? If you didn’t, the court will appoint one.
  • Did you name an executor? If you didn’t, the court will appoint one.

Types of Wills

What is a holographic will?

A holographic will is one that is handwritten and signed by the testator, but is not signed by any attesting witnesses. The majority of states consider these wills to be valid, though a good number still require that wills be witnessed by at least two other persons, making a holographic will ineffective.

SIDEBAR: Although some states do not allow holographic wills, the will might still be valid if it was executed in another state and meets that other state’s legal requirements. For example, assume you wrote your will when you lived in California, but later died in Illinois (which does not permit holographic wills). The will can still be admitted to probate in Illinois because it was written in a state that allows holographic wills and is valid pursuant to California law.

Is an oral will valid?

Oral wills are valid in about 20 states under certain limited circumstances. The states that permit oral wills consider it to be valid only if it was “uttered,” or made, in front of two or three witnesses and during the testator’s most recent illness, at a time when he expected to die, or while he was in the armed forces. Some states even require that it be put in writing at some time after it is spoken. The oral can be used to give away only personal property (e.g., furniture, clothing, or jewelry).

My husband and I want to prepare an estate plan for when we die, and heard that we should have a joint will. Is it the same as a reciprocal will?

No, but the difference is minor. A joint will is one single will, or property distribution, for more than one person. It is single will that disposes your and your husband’s estate. Reciprocal wills are two separate wills, one for you and one for your husband, which contain the same provisions for distributing your estate. For example, the wills provide that you both leave your estate to each other in the event one of you dies before the other, and then to your children in equal shares when the last of you dies. If you and your husband agree to one plan for devising your joint estate, then a joint will or reciprocal wills would serve that purpose.

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