Question 1

What is the difference between a will and a trust?

Accepted Answer

A will is a legal document that directs how your assets are distributed after your death and goes through probate — the court-supervised process of validating the will, paying debts, and distributing property. A trust, by contrast, is a legal entity that holds and manages assets during your lifetime and after death, and assets held in a properly funded trust avoid probate entirely. A will only takes effect at death, while a revocable living trust operates during your lifetime and continues seamlessly after death. Most comprehensive estate plans include both: a trust for the bulk of assets (especially real estate, investment accounts, and business interests) and a pour-over will as a safety net to capture any assets not transferred to the trust before death.

Question 2

Do I need a lawyer to make a will?

Accepted Answer

You are not legally required to hire a lawyer to create a will in any state, and a properly drafted will created without an attorney is just as legally valid as one prepared by a law firm. Our attorney-reviewed templates include the correct legal language, witness provisions, and self-proving affidavit for your specific state. However, you should consider consulting an attorney if your estate is large enough to trigger federal or state estate taxes (over $13.61 million federally in 2024), you want to disinherit a spouse or child (which involves complex legal rules), you own property in multiple states, you have a blended family with children from prior relationships, or you have complex business ownership structures.

Question 3

What happens if I die without a will?

Accepted Answer

If you die without a will (called dying 'intestate'), your state's intestacy laws determine who inherits your property — and the result may not match your wishes. Every state has a statutory hierarchy: typically, your surviving spouse and children inherit first; if you have no spouse or children, assets pass to parents, siblings, nieces, nephews, and more distant relatives in a fixed order defined by statute. Unmarried partners, stepchildren, close friends, and charities receive nothing under intestacy. A court will appoint an administrator (rather than an executor you choose) to manage your estate, and if you have minor children, the court will appoint a guardian — who may not be the person you would have selected. Dying intestate also often triggers a more expensive and time-consuming probate process.

Question 4

How many witnesses do I need for my will?

Accepted Answer

Most states require two witnesses to observe the testator signing the will (or to hear the testator acknowledge their signature). The witnesses must be competent adults, and in most states they must be 'disinterested' — meaning they are not beneficiaries under the will. If an interested witness signs the will, some states void the bequest to that witness rather than invalidating the entire will. Vermont is the only state that requires three witnesses. Louisiana requires a notary and two witnesses under its civil law tradition. In states that recognize holographic (handwritten) wills, no witnesses are required, but the entire will must be in the testator's handwriting and signed by the testator.

Question 5

What is a self-proving affidavit and why do I need one?

Accepted Answer

A self-proving affidavit is a sworn statement attached to the will in which the testator and witnesses affirm, under oath before a notary public, that the will was properly executed — the testator was of sound mind, acted voluntarily, and the witnesses observed the signing. The practical benefit is significant: without a self-proving affidavit, the probate court may require one or more witnesses to appear in court to testify that they witnessed the signing, which can delay probate if witnesses have moved, become incapacitated, or died. With a self-proving affidavit, the court can accept the will without witness testimony. Nearly all states recognize self-proving affidavits, and our templates include the correct form for your state.

Question 6

Can I disinherit my spouse or children?

Accepted Answer

Disinheriting a spouse is extremely difficult in most states because of 'elective share' or 'community property' laws. In common-law states (the majority), a surviving spouse has the right to claim an 'elective share' of the estate — typically one-third to one-half — regardless of what the will says. In community property states (Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin), each spouse owns half of all marital property, and you can only bequeath your half. The only reliable way to disinherit a spouse is through a valid prenuptial or postnuptial agreement in which the spouse waives their elective share. Disinheriting adult children is legal in every state except Louisiana, which has forced heirship rules for children under 24 or children of any age with disabilities. If you want to disinherit a child, you should explicitly state this intent in the will rather than simply omitting them, as an omitted child may be treated as a 'pretermitted heir' and receive an intestate share.

Question 7

How do I choose an executor for my will?

Accepted Answer

Your executor (called a 'personal representative' in some states) is responsible for shepherding your estate through probate — filing the will with the court, inventorying assets, paying debts and taxes, and distributing property to beneficiaries. Choose someone who is trustworthy, organized, financially literate, and willing to serve. Most people name a spouse, adult child, or close friend. You may also name a professional executor such as an attorney, CPA, or trust company, particularly for large or complex estates. Always name at least one alternate executor in case your first choice is unable or unwilling to serve. Consider geographic proximity to you and to the probate court, as the executor may need to appear in person. Some states restrict who can serve as executor — for example, some states require the executor to be a U.S. resident or a resident of the state where probate is filed.

Question 8

Can I change or update my will after signing it?

Accepted Answer

Yes, you can change your will at any time as long as you have testamentary capacity (you understand the nature of your assets, the natural objects of your bounty, and the effect of making a will). Minor changes can be made through a codicil — a separate legal document that amends specific provisions of the existing will without replacing it entirely. The codicil must be executed with the same formalities as the will itself (witnesses, notarization, etc.). For significant changes — such as adding or removing beneficiaries, changing the executor, or restructuring the distribution plan — it is generally better to revoke the old will and create a new one to avoid confusion and potential conflicts between the will and multiple codicils. To revoke a will, you can create a new will that explicitly revokes all prior wills and codicils, or you can physically destroy the old will with the intent to revoke it.

Question 9

What is probate and how long does it take?

Accepted Answer

Probate is the court-supervised process of validating a will, identifying and appraising estate assets, paying debts and taxes, and distributing the remaining assets to beneficiaries. The probate process typically takes 6 to 18 months, though complex or contested estates can take several years. The timeline depends on the size and complexity of the estate, whether anyone contests the will, how efficiently the executor works, and the backlog of the local probate court. Probate costs typically range from 3% to 7% of the estate value, including court fees, executor fees, attorney fees, and appraisal costs. Some states offer simplified probate procedures for small estates — thresholds range from $20,000 to $275,000 depending on the state — which can significantly reduce the time and cost involved.

Question 10

Can someone contest my will?

Accepted Answer

Yes, an interested party (typically an heir, beneficiary, or creditor) can contest a will in probate court, but they must have legal standing and a valid legal basis. The four most common grounds for contesting a will are: (1) lack of testamentary capacity — the testator did not understand the nature of their assets, who their natural beneficiaries were, or what they were doing; (2) undue influence — someone exerted improper pressure that overcame the testator's free will; (3) fraud — the testator was tricked into signing the will or misled about its contents; and (4) improper execution — the will was not signed or witnessed in accordance with state law. To reduce the risk of a successful contest, ensure the will is properly executed with witnesses and a self-proving affidavit, consider including a 'no-contest' clause (in terrorem clause) that disinherits anyone who challenges the will, and if capacity might be questioned, obtain a physician's statement confirming competency at the time the will is signed.

Question 11

Do I need to notarize my will?

Accepted Answer

In most states, a will does not need to be notarized to be legally valid — witness signatures are the primary requirement. However, a self-proving affidavit, which does require notarization, is strongly recommended because it eliminates the need for witnesses to appear in probate court to verify their signatures. Louisiana is the only state that requires notarization of the will itself for a notarial testament. Colorado and North Dakota allow a will to be 'notarized' in lieu of being witnessed, but this is an alternative to witnesses rather than an additional requirement. Even if your state does not require notarization, having the self-proving affidavit notarized is a best practice that saves time and expense during probate.

Question 12

What assets does a will control?

Accepted Answer

A will only controls 'probate assets' — property that is owned solely in your name at the time of your death without a designated beneficiary or transfer-on-death provision. This includes individually owned real estate, personal property (vehicles, jewelry, furniture, art), individually held bank accounts, and solely owned investment accounts. A will does not control 'non-probate assets,' which pass automatically by operation of law or contract: jointly held property with right of survivorship, life insurance proceeds with a named beneficiary, retirement accounts (401(k), IRA) with a named beneficiary, payable-on-death (POD) and transfer-on-death (TOD) accounts, and assets held in a trust. Because non-probate assets can represent a significant portion of your estate, coordinating your beneficiary designations with your will is essential to ensure your overall distribution plan works as intended.

Question 13

How should I store my will after signing it?

Accepted Answer

Store the original signed will in a secure, fireproof location that your executor can access after your death. Common storage options include a fireproof safe at home (make sure someone else knows the combination or has a key), with your attorney (many estate planning attorneys will hold original wills in their office vault), or filed with the local probate court (several states allow you to deposit your will with the court for safekeeping during your lifetime). Avoid storing the original will in a safe deposit box, as access may be restricted after your death and your executor may need a court order to open it — which creates a catch-22 if the will granting executor authority is inside the box. Give copies of the will to your executor and alternate executor, and tell them where the original is stored. Never store your will in a location where someone who might be upset by its contents could access and destroy it.

Component	Description
Testator Declaration	Full legal name, domicile, statement that this is your last will, and revocation of all prior wills and codicils
Family Identification	Names of spouse and all children (including adopted, step, and deceased children), which establishes who the "natural objects of bounty" are
Specific Bequests	Particular items of property, dollar amounts, or percentages left to named individuals, charities, or organizations
Residuary Clause	Disposition of all remaining assets not covered by specific bequests — the "everything else" clause that prevents partial intestacy
Executor Appointment	Designation of a primary and alternate executor (personal representative) with specified powers and compensation terms
Guardian Designation	Nomination of primary and alternate guardians for minor children, including both guardian of the person and guardian of the estate
Trust Provisions	Optional testamentary trust terms for minor beneficiaries, specifying age thresholds for distribution and trustee appointment
No-Contest Clause	Optional in terrorem clause that disinherits any beneficiary who unsuccessfully contests the will (enforceability varies by state)
Execution Block	Testator signature, witness signatures, attestation clause, and self-proving affidavit with notary acknowledgment

Free Last Will and Testament Forms

What Is a Last Will and Testament?

Guardian Designation

Asset Distribution

Executor Appointment

Last Will and Testament Form Preview

Last Will and Testament

Article I: Declarations

Article II: Family Identification

Article III: Specific Bequests

Article IV: Residuary Estate

Article V: Executor Appointment

Article VI: Guardian for Minor Children

Execution & Attestation

Types of Wills

Simple Will

Joint Will

Holographic Will

Pour-Over Will

Testamentary Trust Will

Self-Proving Will

Last Will vs Other Estate Planning Documents

Last Will vs Revocable Living Trust

Last Will vs Living Will

Last Will vs Beneficiary Designations

How to Create a Last Will and Testament: An 8-Step Guide

Inventory Your Assets and Debts

Identify Your Beneficiaries

Choose Your Executor

Name Guardians for Minor Children

Draft the Distribution Plan

Include Special Provisions

Execute the Will Properly

Store Safely and Communicate

Key Components of a Last Will and Testament

Legal Requirements for Wills

Uniform Probate Code (UPC)

Testamentary Capacity

Witness and Execution Requirements

Holographic Will Restrictions

State-Specific Variations

Last Will and Testament by State

Sample Last Will and Testament

LAST WILL AND TESTAMENT

Frequently Asked Questions

Official Resources

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