Last Will And Testament: Free Template & Guide

A will is a legal document created in anticipation of your death.

The most well known function of a will is to determine who gets property, but a will can also control other things about your property and responsibilities.

You can use a will to create a testamentary trust, appoint a guardian for your children if you pass away before they reach adulthood and name the person who will be in charge of managing your estate when you pass on.

A will is an important tool in estate planning and one that almost everyone should create, even if they also use other techniques to facilitate the transfer of assets outside of probate. That’s because a will dictates what happens to any money or property not addressed using other estate planning methods, such as a living trust.

It is very important that you create a last will and testament so that you can make sure you control what happens to your money and property after you are gone.

In your will, you can name an executor who oversees the administration of your estate and takes care of your property until probate–the legal process of determining the validity of a will and determining all the assets of the estate and their value–is complete and your assets are transferred to new owners. And you can specify exactly who inherits your assets.

A will also allows you to determine who will serve as guardian of your children if you are unable to raise them until they become adults.

A will can do other things too, such as create a trust to provide for a minor or a loved one who cannot manage an inheritance on their own.

You should create a will even if you use other estate planning tools such as a trust or pay-on-death accounts. That’s because your will addresses any other property that has been left out of your other plans.

A will is a legal document, and like every legal document, there are limitations on what it can do. While details vary depending on state laws, the following are some standard limitations:

• Wills don’t avoid probate. The probate process exists to validate wills and ensure that they are properly enforced. Creating a will means that there will be a probate process, regardless of how well it is written.
• Wills shouldn’t dictate funeral arrangements. There is no guarantee that someone will review a will immediately after death occurs. Funeral arrangements could be long completed before anyone looks at the will.
• Wills can’t override designated beneficiaries of financial accounts. Any changes to beneficiaries need to be completed before death occurs. Financial institutions won’t make any changes after death.

Wills can’t create trusts or grant power of attorney. Decisions about power of attorney or trusts require separate documents. However, every will should designate an executor.

Compared to most legal documents, wills are reasonably simple. Most people can make a legitimate will without professional legal assistance. However, creating a last will and testament without consulting with a lawyer might result in one that is not effective, especially if state laws regarding wills are particularly strict.

In most states, for a will to be legal, the following must be true:

• The testator must be at least 18 years old. Most states require the testator (writer of the will) to be an adult. However, some states make exceptions for emancipated minors, married minors, and minors in the military.
• The testator must be of sound mind when creating the will. While “sound mind” is defined differently in each state, this typically means the testator isn’t mentally incapacitated and isn’t being coerced.
• The will is typed. Some states allow handwritten or oral wills, but many don’t. A typed will is valid in every state.
• The testator signed the will. If the testator is unable to physically sign the will, some states will allow alternate marks or assistance from a trusted party. However, because laws differ by state, anyone who can’t physically sign a will should contact an attorney for advice.
• The will is signed by witnesses. Most states require two disinterested witnesses to observe the testator signing the will and also sign it themselves. A disinterested party is one who does not benefit from the will. Even if a state doesn’t require this step, there is no harm in having witnesses.

The best way to make a will is to work with an experienced estate planning attorney. However, you can also create a will yourself. Regardless of how you approach it, there are five steps that you will need to follow:

• Identify all assets and property. Make a list of every asset you have and collect all relevant records for those assets.
• Designate an executor. The executor of your will is legally obligated to fulfill the instructions of your will. They must be at least 18 years old and meet any state-specific qualifications. You should typically name backup executors, too, especially if your executor is of advanced age.
• Designate beneficiaries and inherited assets. Your will must specify who will inherit each asset that you previously identified. Any property not specified in the will may be disbursed following state beneficiary laws. You may also wish to assign contingent bequests in case beneficiaries die before you.
• Sign the will with witnesses present. Once the will has been written and reviewed for accuracy, sign it with witnesses present and then have the witnesses sign the document.
• Store the document and all relevant records in a safe place. Place the will in a secure location, like a safe or safe deposit box, and make sure your executor has access to that location. Also, put all relevant financial records in the same location so the executor can easily follow the instructions in your will.

The specifics of what you should put in your will vary depending on your situation. For example, your last will and testament needs to include different things if you have minor children to provide for or disabled loved ones to take care of after you are gone.

Here are some examples of clauses that should be included in most wills.

An Introductory Clause

In your introductory clause, you provide your personal information including your full name and the state where you live and indicate you are of sound mind at the time of the will.

A Declaration Clause

Your declaration clause indicates that you intend this legal document to serve as your last will and testament. You should date your will and specify that this is your current legally valid will, revoking any wills that came before it.

A Clause Identifying the Executor or Administrator

An executor or administrator oversees the probate process with the court in which your estate is settled.

The executor or administrator will also manage your estate assets until they are transferred to beneficiaries. This is an important job, as the executor must take many steps including locating assets, filing court paperwork and notifying creditors of your death and the probating of your will.

A Bequest Clause

A bequest clause specifies who will inherit your assets and how they will be distributed. It’s important to note this applies only to assets that transfer during the probate process.

If you have put assets into a living trust, your retirement accounts name beneficiaries who inherit upon death or you co-own real property titled as joint tenants with rights of survivorship, the property will be transferred to the co-owner, joint account holder or named beneficiaries regardless of what you might specify in your will.

A Residuary Clause

A residuary clause should be included in your last will and testament. It specifies who inherits any property that is not otherwise addressed in your estate plan.

A Guardianship Clause

If you have minor children, you need to appoint a legal guardian for them using a guardianship clause in your will. It is a good idea to appoint a successor guardian in case your first choice person passes before you or is otherwise unable to take over the care of your children if you pass away before they reach adulthood.

An Attestation Clause

An attestation clause is the clause that is signed by the witnesses, attesting that the will is valid and was signed by you. Different states have different rules for the number of witnesses and the process for a witness signing a will in order to make it legally valid.

A No-Contest Clause

If you are concerned about someone arguing about the validity of your will, you can include a no-contest clause. This type of clause specifies that a beneficiary cannot inherit if they unsuccessfully challenge the validity of a will after your death.

Different states have different rules about when they enforce these clauses, with some depriving a beneficiary of their inheritance only if they do not have a reasonable belief their claim is merited.

If you do not have a will, the laws in your state determine what happens to your assets. This is referred to as dying intestate.

Intestacy laws apply and dictate the order in which people will inherit from you. While these laws try to ensure assets are left to close family members, you lose the chance to determine how best to provide for those left behind.

If your surviving loved ones cannot agree on who should serve as a guardian for any minor children you leave behind, the court may be asked to make this difficult decision.

The cost to make a will depends on how it is made. The cheapest way is to create a do-it-yourself will. With this type of will, the testator finds a template and writes the will themselves.

A quick internet search will uncover dozens, if not hundreds, of will templates online. These range in cost from free to a few hundred dollars.

The only other significant cost for this type of will is storage. A safe deposit box costs approximately $100 per year. Alternatively, a good home safe may cost anywhere from a few hundred dollars to a few thousand dollars.

The assistance of a lawyer will increase the cost. A lawyer might charge approximately $500 for a very simple will. For anything beyond that, expect to spend about $300 per hour for the lawyer’s services.

Additionally, if the lawyer maintains the will, they will likely charge a modest fee (up to about $1,000) per year. Finally, if they act as an executor, they will likely take a fee of a few thousand dollars from the estate when the testator passes.

There are different kinds of wills that you can create in order to take control of your legacy. Here are some of the most common types.

Simple Will

A simple will is one in which assets are left directly to beneficiaries. Simple wills are easy to write in most cases, and you can amend them as needed over time. They are an ideal option for people who do not have children from a prior marriage, who do not have a lot of assets and who do not have concerns about anyone challenging their last will and testament.

Complex Will

A complex will is used if you have more specialized needs. For example, you need a complex will if you want to create a testamentary trust. This is a trust created within your will. You create the testamentary trust to transfer ownership of assets into a trust instead of directly to beneficiaries.

You can use a complex will to do things like create a special needs trust (to leave assets to person with disabilities who relies on means-tested government benefits) or to create a protective trust for your child.

Holographic Will

A holographic will is handwritten by the creator of the will (called the testator). It is not recognized in all states and they must often meet certain requirements, such as the will being signed by witnesses who were present when the testator signed the document.

Living Will

A living will is very different from the other kinds of wills. A living will does not specify who inherits assets.

Instead, the purpose of a living will is to make advanced decisions about medical care. When you create a living will, you specify what kinds of medical care you do and do not want in the event decisions must be made while you are incapacitated.

A will is a document that passes control of assets from one person to another (or multiple others) at the time of death. A trust is a document that passes control of assets from one person to a legal entity. This legal entity spends that money as instructed by the creator of the trust.

There are two types of trust: revocable and irrevocable. Both are often used as alternatives to a will to pass assets to future generations. The latter passes those assets while the grantor is still alive. The former typically passes them upon the death of the grantor. Trusts offer the advantage that they avoid probate.

If you are creating a last will and testament, contact an experienced estate planning lawyer as soon as possible. Your attorney can help you to ensure your wishes are respected and that you can create a legacy you are proud of.