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What is a Will and Why Do I Need One?

Last update on: Dec 09 2020
By Katie Kao
Estate Planning

A will is a legal document in which a person, known as the testator, sets forth his or her wishes on how to distribute an estate’s assets, pay debts, care for any minor children and perhaps other issues after the individual dies. Most often, the testator appoints one or more executors to administer the estate and names guardians for minor children in a will. A will also might create one or more trusts and name the trustees. 

Why Do I Need a Will?

When a person dies without a will, known as dying intestate, state law controls how the property in the estate will be distributed. Often, the property isn’t distributed how the deceased would have wanted. In many states, any children, whether adult or not, inherit one-third to two-thirds of the estate. The surviving spouse inherits the rest of the estate. In a will, you also can direct that a portion of your estate be donated to charity. 

In addition, a court will appoint the executor, the guardians of minor children, and make other decisions the deceased could have made in a will. 

A will is essential for everyone, regardless of the value and simplicity of the estate. Among the reasons to have a will are: 

  • You state clearly how your property is distributed. You state who receives which assets and how much in total they receive.
  • You can identify guardians for your minor children.
  • You can avoid having assets inherited by anyone you don’t want to have them but who would inherit under state intestacy laws.
  • You can name one or more executors to handle the affairs of your estate and to carry out your wishes.
  • You make it likely the estate will be processed faster and at less cost, transferring more of your assets to your loved ones faster than would happen without a will. 

A will doesn’t have to be prepared by a lawyer, though it is a good idea to use an attorney if your estate is valuable or complicated. Using an attorney is also a good idea if you have a blended family or plan to distribute the assets in a way most people won’t expect. The basic requirements of a valid legal will are below. 

What Are the Minimum Requirements of a Will?

A will must meet several requirements to be valid in most states. Although the specifics vary from state to state, most states require the following:

  • The testator must have testamentary capacity and be acting without duress or compulsion. Testamentary capacity is the ability to understand what is in the will. Any person age 18 or older can execute a valid will.
  • The will should be written. It can be in any language and on any material. Many states are beginning to accept wills that are entirely in a digital format and never were printed and signed. 
  • The will should be dated and signed by the testator in the presence of at least two adult witnesses, who are disinterested and not beneficiaries of the will. The witnesses usually must attest in writing that the testator appeared to be competent and not acting under duress or undue influence when he signed the will. Some states require more than two witnesses. 
  • Some states require the signatures of the testator or witnesses or both to be notarized.
  • A state might not require witnesses. But it is best for a testator to sign in the presence of disinterested witnesses because that makes it harder for someone to challenge the will. 

If the requirements above are not satisfied, it is easier for someone to challenge, or contest, the will’s validity. Will contests most commonly are based on the grounds that the testator lacked testamentary capacity, was under duress or undue influence, or that the will didn’t reflect the actual intent of the testator, in entirety or in part.

Valid wills go through probate, which is the process in which a court of law determines whether the document is valid and authentic. Once the validity of the will is established, the probate court oversees the payment of debts, distribution of assets, and any other matters covered by the will. 

Can a Will be Changed or Revoked?

A will should be reviewed every two or three years to determine if any part of it needs to be changed. It also should be reviewed after major life events, such as births, deaths, marriages and divorces. 

A will can be amended or revoked by the testator at any time before death.  Only the latest version of a will at the time of death is valid. 

You can change a will by either writing and executing a new will or by amending it through a legal document known as a codicil. A codicil amends only one or more portions of the will and is less expensive and easier to draft than a new will. The risk of using a codicil is that the codicil becomes separated from the will and doesn’t make it to the probate court. A new will or a codicil should have specific language revoking all prior wills and codicils. 

It’s also possible in most states to revoke a will by intentionally destroying the current version, by burning or tearing the physical document, or by striking out the signature. But you will want to execute a new will to avoid dying intestate. 

In some states, revocation of all or part of a will occurs by law, such as when the testator gets married, divorced, has a child, or sells property named in the will.

Key Takeaways

  • A will is a legal document that directs how assets are to be distributed after death.
  • Without a will, the decision about the distribution of an estate will be controlled by state law.
  • A will can give other directions, such as payment of debts, donations to charity, the appointment of guardians for minor children and other matters. 
  • For a will to be valid, the testator must have testamentary capacity and must sign the will, usually in the presence of two or more witnesses. The signatures might have to be notarized. 
  • A will can be amended or revoked at any time.

Valuable contributions to this summary of “What is a Will and Why Do I Need One?” were made by Bob Carlson, editor of the Retirement Watch financial advisory service and chairman of the Board of Trustees of Virginia’s Fairfax County Employees’ Retirement System with more than $4 billion in assets.

Katie Kao is an editorial intern with Eagle Financial Publications.

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