Wills

The short version

A will is a legal document that tells everyone how you want your property and money divided after you pass away. It also lets you name guardians for your minor children. Without a valid will, state laws will decide these important matters for you, which might not be what you would have wanted.

The law this is built on

Every point below comes from the authority named next to it. Verify the current text before relying on it.

Uniform Probate Code § 2-502(a)
This section states that for a will to be valid, it must be in writing, signed by the person making the will (or another person signing on their behalf and in their presence), and signed by at least two witnesses.
Why it matters: This sets the basic rules for creating a will that courts will accept as legal and binding.
Uniform Probate Code § 2-501
This section defines a 'will' as including any codicil, which is an addition or change to an existing will, and also lists 'testamentary instrument' as another term for a will.
Why it matters: It clarifies that a will can be changed and that these changes must also follow similar legal requirements.
Uniform Probate Code § 2-503
Even if a document doesn't strictly follow all signing requirements, it might still be treated as a will if it's proven by 'clear and convincing evidence' that the person who made it intended it to be their will.
Why it matters: This allows courts some flexibility to recognize a person's wishes, even if there was a minor mistake in how the will was created.

Words you need to know

Testator: This is the legal term for the person who is making the will.
Beneficiary: A person or group named in a will to receive property, money, or other assets.
Executor (or Personal Representative): The person or institution named in your will to manage your estate, pay debts, and distribute your property according to your wishes.
Guardian: A person named in a will to care for your minor children if you pass away.
Intestacy: The legal term for dying without a valid will. In this situation, state law decides how your property is distributed.
Codicil: A legal document that adds to, changes, or explains an existing will. It must be created with the same legal formalities as the original will.

Your rights

✓You have the right to decide who receives your property after you pass away.
✓You have the right to name a guardian for your minor children in your will.
✓You have the right to choose who will manage your estate (your Executor).
✓You have the right to change or revoke your will at any time while you are mentally capable.
✓Your will, if valid, will generally be followed by the probate court.

How the process actually works

1
Decide What You Own
Before drafting the will
Before writing your will, list all your assets (property, money, valuables) and debts. This helps you decide how to distribute them.
2
Choose Beneficiaries
Before drafting the will
Decide who you want to receive your assets. Name specific people or charities, and consider backup beneficiaries if your first choices are not alive.
3
Appoint Key Roles
Before drafting the will
Select an Executor (or Personal Representative) to manage your estate. If you have minor children, name a guardian for them. Name backups for these roles too.
4
Draft the Will
When you are ready to make your final wishes known
Write down your wishes clearly. Many people use a lawyer for this step to ensure all legal requirements are met and the language is precise. (Uniform Probate Code § 2-502(a))
5
Sign and Witness
After the will is drafted
You must sign your will in the presence of at least two witnesses. These witnesses must also sign the will in your presence. Some states require a notary. (Uniform Probate Code § 2-502(a))
6
Safely Store Your Will
After signing
Keep your original will in a safe, secure, and accessible place, such as a fireproof safe, safe deposit box, or with your attorney. Tell your Executor where it is.
7
Review and Update
At least every few years, or after major life changes
Review your will regularly, especially after major life events like marriage, divorce, birth of a child, or changes in your assets. You can make changes with a codicil or a new will.

Deadlines that can end your case

Creating a Will
None (as long as you are alive and mentally capable)
If you wait until you are no longer mentally capable, you cannot create a legally valid will, and state intestacy laws will apply.
Probate Filing Deadline
Varies by state (typically within a few months of death)
If the will is not filed within the state's required timeframe after death, the probate process can be delayed, making it harder for your Executor to manage your estate.

Costly mistakes

✕Not having a will at all, which means state law decides who gets your property.
✕Not following proper signing and witnessing rules, making the will invalid. (Uniform Probate Code § 2-502(a))
✕Failing to update a will after major life events like marriage, divorce, or new children.
✕Not naming backup beneficiaries or executors, which can cause problems if your first choices are unavailable.
✕Keeping the will in a location that is unknown or inaccessible to your Executor after your death.
✕Attempting to write complex wills without legal guidance, leading to unclear language or errors.

Your checklist

List all your assets and debts.
Decide who your beneficiaries will be, including alternate beneficiaries.
Choose an Executor (Personal Representative) and at least one alternate.
If you have minor children, name a guardian and an alternate.
Draft the will (consider using an attorney for this).
Sign the will in front of at least two witnesses, and have them sign it. (Uniform Probate Code § 2-502(a))
Store the original signed will in a safe, accessible place and inform your Executor.
Review your will regularly and update it as needed.

Common questions

What happens if I die without a will?

If you die without a valid will (intestate), your state's laws of intestacy will determine how your property is divided. This typically means your assets go to your closest family members, like your spouse and children, but it may not match your personal wishes. (Uniform Probate Code § 2-101)

Can I write my own will without a lawyer?

You can, but it is often not recommended for most people. While you are allowed to draft your own will, if it doesn't meet all the strict legal requirements of your state (like proper signing and witnessing under Uniform Probate Code § 2-502), it might be deemed invalid by a court. Even small errors can lead to expensive legal disputes or prevent your wishes from being followed.

Do I need to name an Executor?

Yes, naming an Executor (also called a Personal Representative) in your will is very important. This person is responsible for gathering your assets, paying your debts and taxes, and distributing your property according to your will. Without one, a court would appoint someone, which may not be the person you would have chosen. (Uniform Probate Code § 3-601)

How often should I update my will?

You should review your will at least every few years. You should definitely update it after major life changes such as marriage, divorce, the birth or adoption of a child, the death of a beneficiary or Executor, or a significant change in your financial situation or assets. A codicil or a new will can make these changes. (Uniform Probate Code § 2-501)

Are assets held in a trust or with a named beneficiary covered by my will?

Generally, no. Assets held in a living trust or those with a named beneficiary (like life insurance policies, retirement accounts, or bank accounts with 'payable-on-death' designations) will pass directly to the named beneficiaries or trust according to their specific terms. Your will typically only controls assets that do not have such designations. (Uniform Probate Code § 6-201, Uniform Probate Code § 6-202)

How this changes by state

The exact requirements for a valid will can vary slightly from state to state, even though many states follow the Uniform Probate Code. For example, some states might require a notary in addition to witnesses, or have different rules for what constitutes a valid signature. The number of witnesses is generally two, but some states might have specific rules for 'self-proving' wills. To find your state's specific rules, you should look up your state's probate code or consult with an attorney licensed in your state.

When you need a lawyer

You should consider hiring a lawyer if you have a complex estate, minor children, specific wishes about who gets your property, or if you want to ensure your will is legally sound and avoids common pitfalls. A lawyer can help you understand your state's specific laws, draft a will that accurately reflects your wishes, and help you correctly sign and witness it.

Do this today

→Make a list of your property, debts, and family members.
→Think about who you would want to be your Executor and guardian for your children.
→Research your state's specific will requirements or schedule a consultation with an estate planning attorney.

This lesson is legal information for educational purposes only, based on State probate codes; Uniform Probate Code. It is not legal advice and does not create an attorney-client relationship.