Last Wills Law

Updated February 23, 2024
9 min read
Last Wills Law: house, scales, jewelry, books

You probably have heard the adage: “The only two certainties in life are death and taxes.” The adage, itself, has been attributed to different sources–Mark Twain, Benjamin Franklin, and others. Regardless of its source, however, there is no denying the sentiment. There is one thing every person has in common – we are all going to die.

Because many people don’t like to think about their own death, many people also don’t like to think about having a last will (also called a “last will and testament” or just a “will”). Having a last will means accepting your mortality. However, it also means planning responsibly for your family and loved ones after your death. And because death comes to everyone, having a last will is something everyone should consider.

What Is a Last Will?

A last will is a legal document in which the writer of the last will (called a “testator”) expresses his or her wishes for how their property should be distributed to others when the testator dies. A valid last will only becomes effective upon death if it satisfies the rules of the state for wills (called the “last wills law”).

Under the last wills law of each state, if you die without a last will, you die “intestate.” This means that when you die, the state has no legal way of knowing how you want your property to be distributed upon your death. In this case, the state applies a body of law (called the “intestacy laws”), which distributes your property to your closest surviving relatives (also called your “intestate heirs”). When you die with a will, however, the last wills law of the state distributes your property according to your wishes expressed in the will. 

If you die with a will that does not satisfy the last wills law of your state, your will may not be valid, and you will die intestate. This is why creating a valid last will that satisfies the last wills law of your state is one of the most important things you can do during life to provide for your family and loved ones upon your death.

What Does a Will Cover?

A last will can cover anything the testator wishes to express upon death. Typically, a valid last will covers the testator’s wishes for the distribution of property upon death. This includes:

  • Identifying the specific property to be distributed

  • Identifying beneficiaries (the person or persons to receive the testator’s property upon the testator’s death)

  • Naming an executor (the person the testator appoints in the last will to be legally responsible for administering the testator’s estate and carrying out the testator’s wishes)

  • Directing the payment of any debts and taxes owed by the testator

Insight

A last will may also cover other issues that may be important to the testator, such as:

  1. Expressing any specific wishes with regard to the testator’s burial or funeral services (because the testator is likely to be buried long before the testator's will is probated, this only makes sense if the executor of the will is aware of the testator’s wishes expressed in the will when the testator dies); or
  2. Providing for the custody and care of minor children upon the testator’s death.

For a court of law to enforce the terms of a testator’s last will, the will must be valid, which means it must satisfy the specific last wills law of the state.  

3 Conditions to Make a Valid Will

The last wills law of each state sets out the requirements for creating a valid last will. Generally, there are three conditions for having a valid last will in any state. 

Condition 1. At Least 18 and of Sound Mind

To have a valid last will in any state, you must be at least 18 years of age and be of sound mind. These requirements make it less likely that a testator will be subject to the undue influence of another. To be of sound mind generally means that you are of sufficient mental capacity to understand:

  • The extent of your property. This means that you know and understand what property you own and have a right to give away upon your death.

  • The objects of your bounty. The “objects of your bounty” is a fancy way of saying, “your beneficiaries.” To be of sound mind means that you know and understand to whom you are giving your property upon your death. 

  • The nature of your bequests. This means that you understand the legal effect and consequences of creating a last will. You must understand what a last will is and the consequences of having one.

Condition 2. Put in Writing and Signed

With very few exceptions in states that recognize oral wills (also called “nuncupative wills”), most state’s last wills law requires that a valid will must be put in writing, which means it must be typed or handwritten (a fully handwritten will is also called a “holographic will”). For a will to be valid, the testator must also sign the will. The testator’s signature is what demonstrates the testator’s intent for the last will to be treated as valid. Without the testator’s signature, a court will presume that the testator did not intend for the last will to become legally effective upon the testator’s death.

Condition 3. Stamped by a Notary

The last wills law in every state requires that there be some evidence that the testator actually signed the document and intended the document to become his or her valid last will. A common way to authenticate the testator’s signature is to have a Notary Public stamp its verification on the last will. In some states, this may be all that is required to have a valid will (this is called a “notarized will”). In states that may not accept only a Notary’s stamp as sufficient to verify the testator’s signature under its last wills law, the testator may be required to have witnesses present to verify the testator’s signature (this is called a “witnessed will”). In states that allow for notarized wills in their last wills law, they are an effective way to minimize the time it may take to validate a witnessed will. 

What Does a Will Do?

A valid will ensures that when you die, the probate court will distribute your property according to your wishes. By having a valid will when you die, you avoid the application of the intestacy laws, which are the default rules the state applies when someone dies without a will. The intestacy laws provide that a testator’s property will be distributed to his or her closest living blood relatives. If that is not how you want your property to be distributed when you die, you must have a valid will to express your wishes for how you want the court to distribute your property. Having a valid will ensures that the last wills law of the state will apply when you die.

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What Does a Will Not Do?

A last will only applies to the property that remains in your probate estate when you die. Your probate estate includes only the property you own at the time of your death. It does not include property that automatically passes to someone else according to the terms of some other “non-probate” instrument or rule of law. Such “non-probate” property may include:

  • Property titled in joint names with rights of survivorship (i.e. a jointly-owned house or bank account)

  • Payable-on-death benefits (i.e. life insurance benefits, retirement accounts)

  • Property held in a trust.   

A will does not dispose of any property that is transferred to a beneficiary according to the terms of any other kinds of non-probate instruments. 

Types of Wills

There are several types of wills that may or may not be recognized in your state’s last wills law. If you are not sure whether your state recognizes a certain kind of will, you should consult with an estate lawyer before creating your will.

Holographic Wills

A holographic will is a will that is written entirely in the handwriting of the testator. Generally, a holographic will must be dated and signed by the testator. Some states require only that the “material portions” of the will (the property, the beneficiaries, and the testator’s signature) be in the handwriting of the testator. Some states may not require that a holographic will be dated. Holographic wills do not require witnesses to be present when the testator signs the will.

Holographic wills are not recognized in every state. Even in states that allow holographic wills, the specific rules for creating them may differ. If you choose to create a holographic will by writing your will by hand, you should consult with a probate attorney to make sure you satisfy the specific last wills law in your state for validating a holographic will.

Oral Wills

Unlike holographic wills, oral wills (also called “nuncupative wills”) are wills that are not written by the testator at all. Instead, the testator orally states his or her wishes in the presence of competent witnesses, who later reduce the testator’s statements to writing. This might occur when the testator’s death is imminent and the testator is unable to write their will. Instead, the testator makes an oral “death-bed” conveyance of property, just before dying. Although some courts have recognized and enforced oral wills, they are not valid under the last wills law in most states and are rarely accepted for probate. Before relying on an oral will, you should consult with a probate attorney to make sure this is a proper way for a testator to transfer property upon death under the last wills law in your state.    

Pour-Over Wills

A pour-over will is a will that disposes of property by naming an existing trust (often referred to as a “living trust”) as the beneficiary of property described in the will. In a sense, the testator uses the last will to pour property into an existing living trust upon death. By doing so, the property that is poured into the trust is then distributed according to the terms of the living trust.

Mutual Wills

Mutual wills are last wills that married persons sometimes use as a way of binding both spouses to the same terms. Mutual wills are two different documents that provide the same thing for each spouse – usually that the surviving spouse will leave all property to the spouse’s children. By signing mutual wills, the spouses ensure that when one spouse dies, the surviving spouse will be bound by terms that both spouses agreed upon. In this way, the surviving spouse may not transfer property to a new spouse or another beneficiary that the deceased spouse did not agree to benefit in the will.

Why You Should Have a Will

Many people do not have a will because they think wills are only useful for wealthy people with complex estate plans. This is not true. There are many reasons why everyone should consider having a last will, including:

  1. A will allows you to provide financially for surviving family members and loved ones after you die;
  2. Having a will allows you to clearly express your intentions about how you want your property to be distributed upon your death;
  3. Having a will can prevent family members and loved ones form arguing over who you intended to receive your property when you die;
  4. Distributing property in a will allows you to avoid having property default to surviving heirs who you may not want to receive your property after you die;
  5. You can appoint someone you trust to serve as the executor of your estate;
  6. In your will, you can designate someone to take custody of your minor children when you die;
  7. You can make charitable contributions in your will; and
  8. You can revoke or amend your will at any time during your life.

How Do I Write a Last Will?

Your will does not have to be complicated. It can be simple enough that you can write it yourself. 

  1. To begin, identify yourself and state that you intend for the instrument you are writing to be your last will. 

  2. Then, compile a list of assets that you intend to give away upon your death. Be sure to include any personal property that you wish to transfer to a specific person or entity. Describe each asset sufficiently for the executor to identify the specific property you intend to transfer.

  3. Next, identify the beneficiaries who will receive the specific assets you have included. Again, be sure to clearly identify the beneficiaries to avoid any confusion over who you are naming as the beneficiary of each specific asset to be transferred.

  4. Once you have itemized all the property you wish to devise to specific beneficiaries, you should identify another beneficiary (called a “residuary beneficiary”). This is the person who will receive any remaining property in your estate that you have not distributed to specific beneficiaries. 

  5. You should appoint an executor to administer your estate through the probate process. Be sure to choose an executor you trust and who has agreed to serve in this capacity. 

  6. In your will, you also may designate someone to serve as the guardian or custodian of your minor children, should you have minor children when you die. 

  7. When you have included everything you wish to include and you are ready to execute your will, you must sign the will in the presence of two witnesses. These witnesses must be at least 18 years of age. You should not use a witness who is also a beneficiary in the will. Some states’ last wills law may disqualify as a witness any person with a financial interest in the will.

  8. With at least two disinterested witnesses present, state your intention for the document to serve as your last will. Then sign your name.

  9. Finally, have each witness sign their name below your name, indicating that they witnessed you sign your will.

Warning

You should not include in your will property that will be distributed through another instrument outside of probate. This includes:

  • Jointly held property that a co-owner will retain after you die;

  • Payable-on-death benefits, like life insurance proceeds; and

  • Property subject to a trust or other non-probate instrument. 

Difference Between a Last Will, a Living Will, and a Living Trust

A last will, a living will, and a living trust are three distinct legal documents that serve very different purposes. 

  • A last will is a testamentary document used to distribute a testator’s property to others when the testator dies. A last will operates only upon death.
  • A living will (also called a “health care directive”) is a legal document in which the creator states their preferences or instructions for receiving medical care (or terminating medical support) if or when the creator becomes incapacitated. Unlike a last will, a living will operates during the life of the creator and terminates upon the creator’s death.
  • A living trust is a non-probate instrument in which the creator (called a “settlor” or “grantor”) provides for the distribution of property to one or more beneficiaries named in the trust. A living trust operates during the life of the settlor and may continue operating after the settlor’s death. The property being distributed in the trust is administered by someone called a “trustee.” Property in a living trust is not subject to probate proceedings or the last wills law of the state.  

Last Will vs. Living Will

A last will includes the testator’s wishes with regard to the distribution of property upon death. It does not become legally effective until the testator dies.

A living will includes the creator’s wishes with regard to medical care and the use of life-preserving treatment upon the creator’s incapacity. A living will is only legally effective during life and terminates when the creator dies.

Last Will vs. Living Trust

A last will and a living trust are both used to distribute property to named beneficiaries. However, a last will is testamentary, meaning it only operates to distribute property upon the death of the creator. A living trust operates during the life of its creator.

Warning

If you die without a will, your property will pass according to the intestate laws of the state. Intestate laws typically pass property to your closest living relative when you die.

Where To Keep a Will?

If you have a will that an attorney drafted for you, it is best to leave the original copy of your will in your attorney’s care. Make sure your executor, a family member, or a loved one knows how to contact your attorney. When you die, your attorney will make sure your will is filed in court and that your executor is notified. 

If you draft your own will and do not have an attorney, make sure your will is kept in a safe but accessible place where your executor or family members will find it. Do not store your will in a safe deposit box at a bank. Your executor or family members may have difficulty accessing your will. This can cause a significant delay in the probate process.

Insight

Anyone who is at least 18 years of age may serve as a witness. Under most state last wills laws, a witness must also be “disinterested.” This means that the witness has no financial interest in your estate, either as a beneficiary of your will or as an heir to your property under the laws of intestacy. Every state requires at least two qualified witnesses to validate a witnessed will.  

Do I Need To Notarize My Last Will?

Notarizing your will may be an effective way to authenticate your signature and validate your will, provided your state recognizes notarized wills in its last wills law. If your state does not accept a notary’s stamp without additional verification by witnesses, you will have to include two qualified witnesses to authenticate your signature on the will.

Bottom Line

Drafting a will can seem burdensome, complicated, time-consuming, expensive, and unnecessary. After all, you are young and healthy and have a long life ahead of you. You don’t need to worry about a will until you are older, right? 

Wrong. Wills may deal with disposing of property upon death and may not become effective for a long time. But the bottom line is that your last will is most important to you now, before you die. Only now, while you are living, can you plan for the financial stability and well-being of your family members and loved ones. Only now, while you are living, can you consider how you want to distribute your property upon your death and create a legal document that ensures your wishes will be carried out. The most important time to consider having a last will is now.

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Frequently Asked Questions

Can anyone create a will?

No. Only persons who are at least 18 years of age and are of sound mind can create a will. 

If I create a will and then move to another state, do I need a new will?

No, not necessarily. Your last will is subject to the last wills law of the state in which you are domiciled when you die. That is where your will is likely to be probated. As long as your existing will continues to express your wishes and satisfies the requirements for creating a valid will under the last wills law in the new state, then your existing will continues to be valid for probate. If you move to a new state after drafting your will, it is always best to meet with a lawyer to confirm that your will remains valid according to the last wills law of your new state. 

Is it difficult to change a will if I change my mind on certain provisions?

No. Changing an existing will is as easy as creating a new will. As long as you are still of sound mind, you may change your will at any time. To change your will, you may either create a new will or you may add what is called a “codicil” to an existing will.

A codicil is simply a supplement to an existing will. Your codicil may incorporate by reference an existing will and then add any provisions or terms that you wish to include. In this way, the codicil adopts the terms of the old will and adds the new terms in the new will. To execute the codicil, you must follow the same last wills law that applies for executing a new will.

What will happen to my property if I don't have a will?

If you die without a will, your property will pass according to the intestate laws of the state. Intestate laws typically distribute property to the closest surviving heirs of the person who dies without a will.

How often should I update my will?

You should review your will at least once a year to make sure that it continues to represent your wishes and still satisfies the last wills law in your state. You should update or amend your will any time your wishes change or when you experience any significant life event that may affect the terms of your existing will. Such life events may include: 

  • Marriage;
  • Divorce;
  • The birth or adoption of a child;
  • The death of someone named as a beneficiary in your will;
  • The death of the person named as the executor of your estate;
  • A significant change in the value of your estate or the acquisition of significant property or assets;  
  • The sale or acquisition of a family business;
  • Your retirement;
  • A minor child reaching the age of majority (for which the appointment of a custodian or legal guardian is no longer necessary); or
  • Moving to a new state where you are now domiciled.
Can I name more than one executor in my will?

Yes. It is not uncommon for a testator to name more than one executor in a will. Co-executors then are required to administer the estate together. It also is common for a testator to name one person to serve as executor and then designate another person to serve as a successor to the executor if the original executor dies or is unwilling or unable to continue serving as the executor. 

Can I give away all of my property in a will?

You may give away any property in your will that you own by yourself. If you share title or ownership of any property with another person, such as a joint bank account or interest in a business, the title of the property may limit what you can do with that property in your will.

Does a will allow me to specify care for my pets?

Because a pet is not a person with legal rights, a pet may not be named as a beneficiary in a will. However, you may transfer your pet to a named beneficiary who agrees to care for your pet when you die and also transfer assets to that beneficiary to be used for the care of your pet. Once the pet is given to the beneficiary, however, the pet becomes the beneficiary’s property and there is no way to enforce your wishes under the last wills law if the beneficiary chooses not to honor them.

Every state now recognizes and enforces “pet trusts,” which are different from last wills. Another possibility is to make a conditional gift to the beneficiary by providing assets to the caretaker of the pet with the financial interest conditioned on the proper care of your pet. 

Can I make a gift to a charity in my will?

Yes. Charitable gifts (also called “legacy gifts”) are acceptable under the last wills law of each state. You may name a charitable institution as a beneficiary in your will and transfer specific assets, property, or a specific sum or percentage of money to a charitable beneficiary. Certain charities may have specific procedures for devising legacy gifts. You should contact any charity you are considering to determine the best way to complete your gift.