Create a legal Will in 15 minutes

A Last Will and Testament is a legal document that sets forth a person’s final wishes for things like their assets, liabilities, and beneficiaries. A last will is written while the will-maker is still alive. The will names a living person to serve as an executor. The executor oversees the probate process and distribution of assets.

An estimated 60% of adults in the U.S. do not have a last will. For those that die without a will, known as dying intestate, the state decides how property will be distributed. Most of the time the state’s distribution of property is contrary to what the deceased would have wanted. Failing to leave a will can also have significant tax consequences, reducing the size of the estate.

If you die without a will, or without a valid will, that is called dying intestate. Under intestacy laws, the state oversees the distribution of your assets based on default rules. These rules are listed in state statutes and are further clarified by court rulings which become case law.

Intestacy laws vary by state, but generally if you die without a last will your estate will be split up between your spouse and children. This scenario is the cause of frequent conflicts, particularly where the deceased was remarried and there is ill-will between the surviving spouse and children.

Wills are not just for the rich or elderly. There are many reasons why you should make one. Some common reasons include:

• Specifying who will get your assets and ensuring that your wishes are honored. For example, making sure that your daughter gets your wedding ring.
• Identifying who you want to care for your children. If you die intestate the court will decide.
• Determining who will manage your estate. You can appoint someone that you trust as executor.
• Caring for your pets. With a will you can specify a caretaker and even leave money aside to provide for their ongoing care.
• Supporting charities. Even if you have no heirs, you can direct that your estate be allocated to organizations or causes that are important to you.
• Providing funeral instructions. This makes the process easier for your family and ensures that your wishes are honored.
• Making the process easier on your loved ones. Dying intestate can drag the process out and cost your loved ones money.

An executor can either be named in your last will or appointed by a court if you die without a will [Read: Tips for Choosing the Right Executor]. Some of the executor’s responsibilities include:

• Filing a copy of the will with the probate court
• Setting up a bank account to collect funds and pay liabilities
• Maintaining property
• Filing an inventory of the estate’s assets with the probate court
• Distributing assets
• Paying estate debts and taxes

A last will can be invalidated for many reasons. Some common reasons include:

Not signed or signed in the wrong place.

Generally, wills must be signed and signed properly to be valid and admitted to probate. In some states, a will may still be admitted if it meets the harmless error rule – there is “clear and convincing evidence that the decedent intended the document” as their last will. In other states, the beneficiaries are out of luck.

Not signed in the presence of witnesses.

Some states require that the will-maker sign his or her will in-front of the witnesses. In others, there is no requirement to be in the same room.

Two or more witnesses did not sign the will with the will-maker present.

The number of witnesses required to sign a will varies by state. Most states require at least two, others require three. In some states the witnesses must sign in front of the will-maker. Other states like New York require witnesses to sign within 30 days of observing the will-maker sign.

Witnesses do not meet requirements

In most states a witness must be over the age of 18. There are exceptions to this rule. For example, in Texas, witnesses must be over the age of 14.

Many states require that witnesses be disinterested, meaning that they will not inherit anything under your will. Other states have laws that prevent the executor of your will from being a witness.

Not including provisions required under state law.

Each state has its own laws about what should be included in a will. An attorney licensed to practice in your state will ensure that all state legal requirements are met.

As a general matter, your will should include:

• A clear description of who gets what
• A statement that this your Last Will and Testament
• The name of the persons responsible for probating your will, called the executor