- Legal EditorHenry Dahut, J.D.
Henry Dahut, J.D.
Attorney - Legal Publisher - Educator
Henry Dahut is a licensed California trial attorney. Over the course of his 30-plus years practicing law, Henry has represented and counseled countless clients in legal trouble.
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What is a Last Will and Testament?
A “will,” also sometimes referred to as one’s “last will and testament,” is a legal document that disposes of your “estate” upon your death.
Your “estate” is all your money, personal and real property. If you have a simple estate plan (such as the desire to leave your entire estate to your spouse), your will can be a fundamental document consisting of only a few pages. In about half the states, it can even be handwritten.
What types of wills are legally valid?
You need to follow specific guidelines in wills and trust laws to ensure your will is legally valid. The sections below cover this topic in more detail.
A formal will must be written in most states, signed by the person making the will, and signed by two or more disinterested witnesses.
Some states impose additional requirements, such as requiring that the witnesses sign in each other’s presence or the presence of the “testator” (the person making the will).
What is a “disinterested” witness?
“My mother’s will was witnessed by the couple who lived next door to whom mom left her favorite tea service. Is the will valid?”
This may vary from state to state. The neighbors were not “disinterested” witnesses since your mom’s will gave them something.
In a few states, this might cause the choice to be declared invalid.
Are handwritten wills legally valid?
About half the states permit handwritten (called “holographic”) wills. Generally, these wills must be in the handwriting of the person making the will and must be signed. These will not have to be signed by witnesses and are usually not witnessed.
The requirements for a handwritten will vary from state to state. Some states require holographic wills to be totally in the testator’s handwriting, while others require only handwritten material provisions.
What is a statutory will?
A few states have enacted laws that contain the text of a standardized will, usually with some mandatory and some optional or alternative provisions.
These wills are designed for those who may want to avoid using a lawyer to draft their will. They are designed for those with modest estates and simple plans of distribution. Blank copies can be obtained from the state or county bar associations.
To use a statutory will, a person must select which provisions are desired, fill in the names of the beneficiaries and chosen executor, describe the property being disposed of, sign the will, and have it properly witnessed by two disinterested persons.
Is an audio or video will valid?
No. All wills must be in writing. Therefore, audio or video wills are not valid.
What if I have a large and complicated estate?
If you have a more complicated estate plan (such as providing both for your spouse and minor children of a prior marriage), or if the value of your estate exceeds a half-million dollars, you will probably require a longer and more complicated document.
What are the advantages of having a last will and testament?
You can decide who will inherit your property upon your death. Without a will, your property will pass to the people the state designates as your heirs.
If minor children survive you, you can designate in your will the person you wish to serve as the guardian of your children.
If you leave no will (i.e., if you die “intestate”), the court appoints someone to ensure your property is distributed according to the state’s laws. You can designate the person you wish to be the “executor” of your will in your will.
An executor (called a “personal representative” in some states) is the person legally charged with carrying out the terms of your will. The executor gathers your property, notifies creditors of your death, pays any debts due, and distributes your remaining property according to the wishes expressed in your will.
The person appointed as your executor may be required to post a performance bond that must be purchased from an insurance company. You can avoid the cost of the bond by specifying in your will that your executor is to serve without the bond.
Will assets that I placed in trust be part of my probate estate?
No. If you created a valid living trust, the property you placed in the trust during your lifetime will pass according to the terms of the trust and not under the provisions of your will. Usually, you must keep the trust’s terms the same through your will. If you want to change the terms of the trust, consult your attorney.
Should I use a lawyer for estate planning?
You can draft your own will if you have a small estate and an uncomplicated estate plan. Make very sure that you have followed all the legal requirements for a valid will – otherwise, your desires as to what should happen to your property will not be followed, and your property might pass to people you did not intend to receive it.
Suppose you have a sizable estate or a complicated family situation (such as children from more than one marriage). In that case, you will probably be better off seeing an experienced estate planning attorney.
A lawyer can help you structure your estate plan to minimize taxes and probate fees and see that your property goes where you want it to go. The lawyer can also advise you of alternative devices (such as trusts) to save money and increase your control over the property.
How often should I review my will to keep it current?
Look it over at least every five years. The birth of a child is an excellent time to review the provisions of your will. If you marry, you should draft a new will.
If you separate and are considering divorce, you should draft a new will. Remember that divorce proceedings may take years to complete. If you die during this period without a will, your spouse will take their share according to your state’s “intestacy” laws.
In a community property state, that may be all the community property – the property earned during the marriage. If you don’t want your spouse to get this, you should draft a will (or a new will if you already have one).
If you have inherited property or your holdings have increased through some other means, you should review your will and entire estate plan. Conversely, you should review your will and estate plan if your estate has decreased significantly.
If your relationship with one of your beneficiaries has deteriorated, you should review your will.
Finally, you don’t need a lawyer to make a will, and plenty of good books and will-building programs will allow you to draft a legal will yourself. Notwithstanding, if you have a complicated family situation or a large estate, and you would instead not figure out how to do it on your own, consider retaining an experienced estate planning attorney
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