What Is a Will and Why Do I Need One?

Everyone has an estate, regardless of how big or small it is. An estate includes any property you own, from real estate to personal property to financial assets like bank accounts, stocks, retirement accounts, and life insurance policies. 

“A will is part of the universe of documents that disposes of your estate when you die and also sets the terms under which people are going to inherit,” says Jeremy D. Rachlin, an estate planning attorney at Bulman, Dunie, Burke, & Feld in Bethesda, Maryland.

Many Americans don’t have a will, despite it being a relatively straightforward document to create and modify. This article covers some of the main reasons to make a will. For legal help creating one, reach out to an experienced wills attorney.

Basics of Making a Will

The person who creates a will is called the testator. As testator, you make your last wishes known through the will: 

• How will your estate assets will be distributed?  
• Who do you want to give assets to?  
• Who do you not want to give assets to?  

In addition to addressing these matters, a will “also appoints an individual who’s in charge of the process” of guiding a will through probate court and ensuring that your interests are represented. “Many states call this person an executor, while others call them a personal representative,” says Rachlin. 

A will can also nominate a guardian, which is an “important thing for folks who have minor children,” says Rachlin. A named guardian has “priority to the custody of any minor children if the children’s parents are unable to parent. [Appointment of a guardian] is a very important thing that can be included in a will.” 

Reasons To Make a Will 

The ultimate reason to create a will is to have greater peace of mind about your and your loved ones’ future. Here are some of the main ways that a will brings you greater peace of mind:  

Make Your Final Wishes Known

This is the key function of a last will and testament. Through a will, you give loved ones clarity about your intentions for your estate.

Guide Probate Court Procedures

Probate is the court-administered process of distributing your assets. With a will, probate will be guided by your plans. 

Beneficiary Designations

Beneficiaries are the people or entities you name to receive assets from your estate.

Avoid Intestacy

If you die without a will, state laws known as intestacy laws kick in to determine how your estate will be distributed. Intestate succession can be considered as expanding in concentric circles from your closest relatives to your furthest relatives. Starting with surviving spouses, intestate succession proceeds to children, surviving parents, siblings, and more distant relatives. 

Name a Personal Representative

Also known as an executor, the personal representative is the person who will file your will with the local probate court and guide your will through the entire probate process, ensuring that your final wishes are fulfilled, and your estate’s best interests are protected. If you don’t name an executor in your will, the probate court will appoint one on your behalf. Testators often appoint an adult child or close friend to be an executor—someone familiar with their wishes. 

Settle Estate Taxes and Personal Finances

If your estate is large enough to qualify for state or federal estate taxes, you can address how you would like these tax matters to be handled. Additionally, if you have remaining debts or expenses, you can direct how those should be settled from your estate. 

Name a Guardian for Minor Children

If you have dependents who are under 18 years of age, you can name a guardian who will be responsible for providing for your dependents if you pass away. 

As Rachlin summarizes, “A will is essentially the vehicle that most folks are familiar with that disposes of assets when you die, sets the terms by which people will inherit, and says who will be in charge of that process.” 

What Are the Requirements for a Will? 

Generally speaking, to create a valid will, the testator must be an adult (18 years or older) and of sound mind. The will needs to be in writing in most states, and the testator must explicitly state the will contains their final wishes.  

Additionally, the testator must sign and date the will in the presence of witnesses who also sign and date the document (the required number of witnesses varies by state). 

You generally don’t need notarization to make a valid will. However, if you have witnesses sign a self-proving affidavit attesting to your will’s validity, you will need notarization.  

Wills Are Specific to You and Your State’s Laws

Despite these generally applicable requirements, it’s essential to realize that “wills, like everything in an estate plan, are highly state-specific,” says Rachlin. “The wills that I prepare for District of Columbia residents will have terms specific to the District of Columbia that a Maryland will might not have.”

Learn more about how to make simple wills and whether a DIY will is a good option for you.  

Make Sure Your Estate Plan Documents Agree With One Another

“A will is just one of the documents that can convey assets after a person passes away, and it’s very important to understand that there are other documents that actually override a will,” says Rachlin. “A beneficiary designation on a life insurance or retirement plan will control that asset,” he says. 

For example, if a will says, “I bequeath everything to Dylan when I die,” but there’s a beneficiary designation on file that says Toni inherits a life insurance policy, then it doesn’t matter what the will says. The will does not govern the life insurance policy; it passes out of probate to Toni.

“So, it’s very important to make sure that the will and beneficiary designations are working in concert and not at cross purposes,’ says Rachlin. “If beneficiary designations and a will are inconsistent, it can lead to some hairy situations.” 

What if I Need to Make Changes to My Will? 

If you are holding off on creating a will because you’re concerned about needing to make changes in the future, you don’t have to wait.  

Making changes to a will is straightforward. You can add amendments called codicils that alter your original will to reflect your current wishes. The requirements for making a valid codicil are essentially the same as the requirements for making a valid will in the first place.  

If you keep waiting to make a will so you won’t have to alter it in the future, that plan can backfire. It’s better to have a will in place. Then, if matters change, you can easily alter it with the help of an estate planning lawyer. 

Are There Types of Wills To Avoid?

You generally want to avoid holographic wills, which are handwritten and unattested by witnesses. Because they are unwitnessed, proving the validity of holographic wills can become very complicated and lead to serious disputes in probate court. 

For example, people in probate will have to prove that the testator wrote the entire holographic will and signed it in their own handwriting. They will also have to prove that the testator was of sound mind when they created the will. Furthermore, only about half of the states even recognize the validity of holographic wills. It’s much better to plan ahead and avoid the potential problems of a holographic will. 

Similarly, you should avoid oral wills since not all states recognize their validity and they can lead to serious disputes. 

Find an Experienced Wills Lawyer

Look for a lawyer specializing in wills in the Super Lawyers directory for legal assistance.