Last Will and Testament: Guide to Types, Validity, and Benefits

What Is a Last Will and Testament—and Why You Need One

A “will,” also 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.

Q/A

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.

What if I have a large and complicated estate?

If you have a more complicated estate plan (such as providing for both your spouse and minor children of a prior marriage), or if the value of your estate exceeds half a 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. This is the probate process, and you can designate the person you wish to be the “executor” of your will in your will.

What is an executor?

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 in 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 and uncomplicated estate. 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 ensure 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 from your spouse 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.

Eight Key Differences Between a Will and a Trust By Tax Attorney Toby Mathis

Last Will and Testament – Trouble Tips

The Unintended Ex-Husband: Susan, 45, passed away unexpectedly. She had drafted a will ten years earlier, naming her then-husband as her sole heir. They later divorced, but she never updated her will. Her ex-husband inherited everything, including the home she had intended to leave to her sister. Tip: Had Susan planned ahead, a simple review and update of her will after her divorce could have removed her ex-husband and ensured her intended beneficiaries were named. Some states automatically revoke gifts to ex-spouses, but not all, and it’s a risk not worth taking. Therefore, always update your will after major life events like divorce, remarriage, or the birth of a child.

The “Do It Yourself” Will That Wasn’t Valid: Marty wanted to save some money so he wrote his own will using a free online template. He typed it, signed it, and stored it in a drawer. After he died, the court declared the will invalid because it lacked witness signatures, which were required in his state. His estate went through intestate succession, and his estranged father received his assets instead of his long-term partner. Tip: Don’t let saving a few dollars get in the way of making sure your will is legally valid. With just two disinterested witnesses signing the will — or a consultation with an estate planning attorney — Marty’s wishes would have been honored. Remember, wills and other forms of testamentary documents must comply with state-specific legal formalities. A valid signature and proper witnessing are essential

Forgotten Digital Assets: Alice, a tech-savvy entrepreneur, died suddenly without leaving any instructions for accessing her digital life. Her family struggled for months to access her crypto wallet, cloud files, and social media accounts, some of which held intellectual property and financial value. If Lena had named a digital executor in her will or provided a secure log of her digital assets and credentials, her family could have easily accessed and managed her online estate. Tip: Digital assets are real assets. Include them in your will or estate plan, and designate someone to manage them.

Eight Common Misconceptions About Needing A Last Will and Testament

1. “If I have a will, my estate won’t have to go through probate.”

Reality: A will does not avoid probate—in fact, it is the document that the probate court uses to guide distribution. Probate is the legal process of proving the will and distributing the estate. To avoid probate, assets must be held in trust(s) or designated with beneficiary designations – similar to life insurance or retirement accounts.

2. “I can just make a video will on my phone. That’s good enough.”

Reality: As of 2025, video or audio wills are not legally valid in any U.S. state. A will must be in writing and properly signed—often with witnesses—in order to be legally enforceable. A video can support a testator’s intent, but cannot replace the required written form.

3. “I don’t need a will because everything will automatically go to my spouse.”

Reality: This depends on your state’s laws. Without a will (if you die “intestate”), your assets may be split between your spouse and children or other relatives—even if that’s not what you wanted. A will ensures your intentions are clearly followed.

4. “Handwritten wills are always valid, as long as I sign them.”

Reality: As of 2025, only about half of U.S. states accept handwritten “holographic” wills, and each state has different rules. Some require the entire will to be in your handwriting, others only require key provisions. In many states, such a will may not be valid at all.

5. “I don’t need a lawyer to make a valid will.”

Reality: This is true; you can draft your own will, especially for a small or simple estate. But you must know that you have to follow every legal requirement, and one mistake can invalidate the whole document. For complex estates, blended families, or tax concerns, a lawyer can save you money and conflict down the line. And you will sleep better at night.

6. “Once I make my will, I never need to look at it again.”

Reality: As life changes, so should your will. It is advisable that you review your will every four to five years or after major events: marriage, divorce (especially if there were multiple marriages or prenuptials), deaths, new assets, or a change in relationships with beneficiaries. A will that does not reflect your current intent and wishes can cause serious problems down the road should the will be challenged.

7. “My trust covers everything, so I don’t need a will.”

Reality: Even with a living trust, you still need a “pour-over” will to catch any assets not titled in the trust’s name. Without one, those assets may be subject to intestacy laws, meaning they could go to unintended heirs.

8. “My executor can divide things however they see fit.”

Reality: An executor’s job is to carry out the specific instructions in your will, not make their own decisions. If your will is vague or doesn’t cover something, it can lead to messy legal disputes or unwanted court intervention.

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