Christy Bieber has a JD from UCLA School of Law and began her career as a college instructor and textbook author. She has been writing full time for over a decade with a focus on making financial and legal topics understandable and fun. Her work has.
Christy Bieber, J.D. ContributorChristy Bieber has a JD from UCLA School of Law and began her career as a college instructor and textbook author. She has been writing full time for over a decade with a focus on making financial and legal topics understandable and fun. Her work has.
Written By Christy Bieber, J.D. ContributorChristy Bieber has a JD from UCLA School of Law and began her career as a college instructor and textbook author. She has been writing full time for over a decade with a focus on making financial and legal topics understandable and fun. Her work has.
Christy Bieber, J.D. ContributorChristy Bieber has a JD from UCLA School of Law and began her career as a college instructor and textbook author. She has been writing full time for over a decade with a focus on making financial and legal topics understandable and fun. Her work has.
ContributorAdam has resided at the intersection of legal and journalism for two decades. An award-winning journalist and legal strategist, he’s covered high-profile trials in Florida. After law school, Adam and spent two years clerking for a U.S. District Co.
Adam has resided at the intersection of legal and journalism for two decades. An award-winning journalist and legal strategist, he’s covered high-profile trials in Florida. After law school, Adam and spent two years clerking for a U.S. District Co.
Adam has resided at the intersection of legal and journalism for two decades. An award-winning journalist and legal strategist, he’s covered high-profile trials in Florida. After law school, Adam and spent two years clerking for a U.S. District Co.
Adam has resided at the intersection of legal and journalism for two decades. An award-winning journalist and legal strategist, he’s covered high-profile trials in Florida. After law school, Adam and spent two years clerking for a U.S. District Co.
Updated: Jan 25, 2024, 3:02pm
Editorial Note: We earn a commission from partner links on Forbes Advisor. Commissions do not affect our editors' opinions or evaluations.
Getty
A last will and testament is a legal document that controls how most of your property and obligations are distributed after your death. A valid will allows you to leave assets to people that would be excluded by the laws controlling property distribution after you die, change how your assets would be distributed to family members, establish caretakers for your children or create requirements for inheriting.
In short, a last will and testament allows you some control over how your property, money and obligations are handled after you pass.
A will is a legal document created in anticipation of your death.
The most well known function of a will is to determine who gets property, but a will can also control other things about your property and responsibilities.
You can use a will to create a testamentary trust, appoint a guardian for your children if you pass away before they reach adulthood and name the person who will be in charge of managing your estate when you pass on.
A will is an important tool in estate planning and one that almost everyone should create, even if they also use other techniques to facilitate the transfer of assets outside of probate. That’s because a will dictates what happens to any money or property not addressed using other estate planning methods, such as a living trust.
FEATURED PARTNER OFFERCreate your estate plan
Trust & Will offers customized, state-specific estate plans with clear and affordable pricing
Starting at $199
Payment plan available
Starting at $499
Payment plan available
On Trustandwill.com's WebsiteTrust & Will offers customized, state-specific estate plans with clear and affordable pricing
Starting at $199
Payment plan available
Starting at $499
Payment plan available
It is very important that you create a last will and testament so that you can make sure you control what happens to your money and property after you are gone.
In your will, you can name an executor who oversees the administration of your estate and takes care of your property until probate–the legal process of determining the validity of a will and determining all the assets of the estate and their value–is complete and your assets are transferred to new owners. And you can specify exactly who inherits your assets.
A will also allows you to determine who will serve as guardian of your children if you are unable to raise them until they become adults.
A will can do other things too, such as create a trust to provide for a minor or a loved one who cannot manage an inheritance on their own.
You should create a will even if you use other estate planning tools such as a trust or pay-on-death accounts. That’s because your will addresses any other property that has been left out of your other plans.
A will is a legal document, and like every legal document, there are limitations on what it can do. While details vary depending on state laws, the following are some standard limitations:
Wills can’t create trusts or grant power of attorney. Decisions about power of attorney or trusts require separate documents. However, every will should designate an executor.
Compared to most legal documents, wills are reasonably simple. Most people can make a legitimate will without professional legal assistance. However, creating a last will and testament without consulting with a lawyer might result in one that is not effective, especially if state laws regarding wills are particularly strict.
In most states, for a will to be legal, the following must be true:
The best way to make a will is to work with an experienced estate planning attorney. However, you can also create a will yourself. Regardless of how you approach it, there are five steps that you will need to follow:
The specifics of what you should put in your will vary depending on your situation. For example, your last will and testament needs to include different things if you have minor children to provide for or disabled loved ones to take care of after you are gone.
Here are some examples of clauses that should be included in most wills.
In your introductory clause, you provide your personal information including your full name and the state where you live and indicate you are of sound mind at the time of the will.
Your declaration clause indicates that you intend this legal document to serve as your last will and testament. You should date your will and specify that this is your current legally valid will, revoking any wills that came before it.
An executor or administrator oversees the probate process with the court in which your estate is settled.
The executor or administrator will also manage your estate assets until they are transferred to beneficiaries. This is an important job, as the executor must take many steps including locating assets, filing court paperwork and notifying creditors of your death and the probating of your will.
A bequest clause specifies who will inherit your assets and how they will be distributed. It’s important to note this applies only to assets that transfer during the probate process.
If you have put assets into a living trust, your retirement accounts name beneficiaries who inherit upon death or you co-own real property titled as joint tenants with rights of survivorship, the property will be transferred to the co-owner, joint account holder or named beneficiaries regardless of what you might specify in your will.
A residuary clause should be included in your last will and testament. It specifies who inherits any property that is not otherwise addressed in your estate plan.
If you have minor children, you need to appoint a legal guardian for them using a guardianship clause in your will. It is a good idea to appoint a successor guardian in case your first choice person passes before you or is otherwise unable to take over the care of your children if you pass away before they reach adulthood.
An attestation clause is the clause that is signed by the witnesses, attesting that the will is valid and was signed by you. Different states have different rules for the number of witnesses and the process for a witness signing a will in order to make it legally valid.
If you are concerned about someone arguing about the validity of your will, you can include a no-contest clause. This type of clause specifies that a beneficiary cannot inherit if they unsuccessfully challenge the validity of a will after your death.
Different states have different rules about when they enforce these clauses, with some depriving a beneficiary of their inheritance only if they do not have a reasonable belief their claim is merited.
If you do not have a will, the laws in your state determine what happens to your assets. This is referred to as dying intestate.
Intestacy laws apply and dictate the order in which people will inherit from you. While these laws try to ensure assets are left to close family members, you lose the chance to determine how best to provide for those left behind.
If your surviving loved ones cannot agree on who should serve as a guardian for any minor children you leave behind, the court may be asked to make this difficult decision.
The cost to make a will depends on how it is made. The cheapest way is to create a do-it-yourself will. With this type of will, the testator finds a template and writes the will themselves.
A quick internet search will uncover dozens, if not hundreds, of will templates online. These range in cost from free to a few hundred dollars.
The only other significant cost for this type of will is storage. A safe deposit box costs approximately $100 per year. Alternatively, a good home safe may cost anywhere from a few hundred dollars to a few thousand dollars.
The assistance of a lawyer will increase the cost. A lawyer might charge approximately $500 for a very simple will. For anything beyond that, expect to spend about $300 per hour for the lawyer’s services.
Additionally, if the lawyer maintains the will, they will likely charge a modest fee (up to about $1,000) per year. Finally, if they act as an executor, they will likely take a fee of a few thousand dollars from the estate when the testator passes.
There are different kinds of wills that you can create in order to take control of your legacy. Here are some of the most common types.
A simple will is one in which assets are left directly to beneficiaries. Simple wills are easy to write in most cases, and you can amend them as needed over time. They are an ideal option for people who do not have children from a prior marriage, who do not have a lot of assets and who do not have concerns about anyone challenging their last will and testament.
A complex will is used if you have more specialized needs. For example, you need a complex will if you want to create a testamentary trust. This is a trust created within your will. You create the testamentary trust to transfer ownership of assets into a trust instead of directly to beneficiaries.
You can use a complex will to do things like create a special needs trust (to leave assets to person with disabilities who relies on means-tested government benefits) or to create a protective trust for your child.
A holographic will is handwritten by the creator of the will (called the testator). It is not recognized in all states and they must often meet certain requirements, such as the will being signed by witnesses who were present when the testator signed the document.
A living will is very different from the other kinds of wills. A living will does not specify who inherits assets.
Instead, the purpose of a living will is to make advanced decisions about medical care. When you create a living will, you specify what kinds of medical care you do and do not want in the event decisions must be made while you are incapacitated.
FEATURED PARTNER OFFERCreate your estate plan
Trust & Will offers customized, state-specific estate plans with clear and affordable pricing
Starting at $199
Payment plan available
Starting at $499
Payment plan available
On Trustandwill.com's WebsiteTrust & Will offers customized, state-specific estate plans with clear and affordable pricing
Starting at $199
Payment plan available
Starting at $499
Payment plan available
A will is a document that passes control of assets from one person to another (or multiple others) at the time of death. A trust is a document that passes control of assets from one person to a legal entity. This legal entity spends that money as instructed by the creator of the trust.
There are two types of trust: revocable and irrevocable. Both are often used as alternatives to a will to pass assets to future generations. The latter passes those assets while the grantor is still alive. The former typically passes them upon the death of the grantor. Trusts offer the advantage that they avoid probate.
If you are creating a last will and testament, contact an experienced estate planning lawyer as soon as possible. Your attorney can help you to ensure your wishes are respected and that you can create a legacy you are proud of.
A last will and testament is a formal legal name for a will. It is a legal document that you use as part of your estate plan in order to specify who should inherit assets and who should serve as a guardian of minor children.
A will is a relatively simple estate planning document in most cases so it should not be expensive to make a will. You can usually draft your own will using forms you find online or computer software that guides you through the process. This can be inexpensive or even free although there are risks your will won’t be valid or comprehensive enough. Even if you hire an estate planning attorney, making a will should be affordable, with some attorneys charging hourly fees and others charging a flat rate. The cost of not having a will is far greater than the expenses you incur to create one as your will enables you to provide for loved ones and control your legacy.
A will does not need to be notarized to be a valid legal document. As long as the will is properly witnessed and correctly constructed, it will be enforced by a probate court. However, a probate court must determine that it was properly created. And that process will usually take longer if the will isn’t notarized. A testator who wants to ensure that their loved ones get the benefits they intend should probably get the document notarized. This isn’t very expensive, and notaries are typically very easy to find.
The last type of asset can be included in a trust but not in a will.
A will becomes invalid if the testator didn’t follow the state regulations regarding wills. This could mean that it wasn’t typed or that they didn’t sign it in front of witnesses, for example. Additionally, a valid will may become invalid after certain life events. For example, some provisions in the will may become invalid after the testator gets a divorce or goes through bankruptcy. A will may also become invalid if it is found that the beneficiaries coerced the testator or caused the wrongful death of the testator. The best way to prevent a will from becoming invalid is to have an attorney review it every few years.
Was this article helpful? Share your feedback Send feedback to the editorial team Thank You for your feedback! Something went wrong. Please try again later. California Personal Injury Lawyers
By Christy Bieber, J.D.
By Christy Bieber, J.D.
By Christy Bieber, J.D.
By Jennifer Lagemann
By Christy Bieber, J.D.
By Christy Bieber, J.D.
Information provided on Forbes Advisor is for educational purposes only. Your financial situation is unique and the products and services we review may not be right for your circumstances. We do not offer financial advice, advisory or brokerage services, nor do we recommend or advise individuals or to buy or sell particular stocks or securities. Performance information may have changed since the time of publication. Past performance is not indicative of future results.
Forbes Advisor adheres to strict editorial integrity standards. To the best of our knowledge, all content is accurate as of the date posted, though offers contained herein may no longer be available. The opinions expressed are the author’s alone and have not been provided, approved, or otherwise endorsed by our partners.
ContributorChristy Bieber has a JD from UCLA School of Law and began her career as a college instructor and textbook author. She has been writing full time for over a decade with a focus on making financial and legal topics understandable and fun. Her work has appeared on Forbes, CNN Underscored Money, Investopedia, Credit Karma, The Balance, USA Today, and Yahoo Finance, among others.
© 2024 Forbes Media LLC. All Rights Reserved.
Are you sure you want to rest your choices?The Forbes Advisor editorial team is independent and objective. To help support our reporting work, and to continue our ability to provide this content for free to our readers, we receive compensation from the companies that advertise on the Forbes Advisor site. This compensation comes from two main sources. First, we provide paid placements to advertisers to present their offers. The compensation we receive for those placements affects how and where advertisers’ offers appear on the site. This site does not include all companies or products available within the market. Second, we also include links to advertisers’ offers in some of our articles; these “affiliate links” may generate income for our site when you click on them. The compensation we receive from advertisers does not influence the recommendations or advice our editorial team provides in our articles or otherwise impact any of the editorial content on Forbes Advisor. While we work hard to provide accurate and up to date information that we think you will find relevant, Forbes Advisor does not and cannot guarantee that any information provided is complete and makes no representations or warranties in connection thereto, nor to the accuracy or applicability thereof. Here is a list of our partners who offer products that we have affiliate links for.
