What Is a Will and Why Do You Need One?

Writing a will can look after your heirs while saving your loved ones from frustration during a difficult time.
What Is a Will?

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No one wants to think about needing a will (or the circumstances leading up to that need), but wills are critically important. Wills can ensure you've taken care of those you've left behind, while helping your loved ones during a distressful time.

What is a will?

A will, or last will and testament, is a legal document designating how to manage your affairs upon your death, including: distribution of property, guardianship of children, funeral arrangements and more. Wills make it easier for your beneficiaries to divide up your belongings and fulfill your final wishes.

Unless your assets are held jointly or pass through beneficiary designation, a will can control your single-name assets.

Why do you need a will?

If you die without a will — the legal term being "intestate" — your property will be distributed according to your state's laws.

In Texas, for example, intestacy laws give your property to your closest relatives, starting with your spouse, then your children, before branching out along your family tree. This process could end with a distant relative you didn't know — or worse, knew and disliked — taking ownership of your prized possessions. Still worse, it could lead to your family becoming entangled in costly legal wrangling over your estate. In either case, the final outcome could be far different from what you wanted.

Types of wills

There are several different types of wills and your state's legal requirements dictate their validity.

  • Simple or testamentary will. A legal document that specifies how to allocate your property upon your death.

  • Joint or mirror will. A legal document that blends the individual wills of more than one person because their wishes are the same. For example: a spouse leaving everything to their surviving spouse and then to their children.

  • Handwritten or holographic will. A will that has not been witnessed or notarized, but is written by hand. It may not be valid in every state. For example: a soldier scribbles his/her wishes on pen and paper during a dangerous situation.

  • Oral or nuncupative will. A will verbally expressed to witnesses, rather than written down. It may not be valid by state. For example: A terminally ill patient who is unable to write and instead states his/her wishes aloud.

  • Pour-over will. A legal instrument used alongside a living trust as a contingency. It "pours" all estate assets over to the living trust in case assets were not transferred beforehand. For example: An asset wasn't properly titled to the trust, but the pour-over will takes care of moving it over.

» What works best for you? Know the differences between wills and trusts

  • Living will. Unrelated to any of the wills defined above, a living will outlines your preferences for medical care in the event you are unable to speak for yourself.

Considerations when making your will

Despite what you may think, every adult needs a will, regardless of age, wealth or family circumstance. It's not hard to create a will, but there are many details to consider during the process.

Decide if you need help writing your will

If you're a do-it-yourselfer, you may want to apply that philosophy to your final wishes. You can find many will templates and will-writing programs online. People with smaller estates or relatively uncomplicated financial situations and those looking to avoid legal expenses often go this route.

However, if you're wealthy or have a more complicated estate, you should at least set up an initial consultation with an estate attorney or wealth advisor who can help with estate planning. If your estate is more than the amount that triggers the federal estate tax — that's $12.06 million in 2022 — you may already have estate advisors who can help with your will. You may also want to consider a trust, which can help reduce your estate taxes in some cases. Keep in mind that it's not a decision of whether to choose a will or a trust, many people end up using both.

» How can a trust affect my estate plan? Compare revocable vs. irrevocable trusts

Hybrid will writing also is an option. Here you start with an online approach and, if you discover you have more questions or a complicated situation arises, you work with an attorney. Since you created the document's foundation, it could lessen your legal costs.

» Need some help? Check out our roundup of the best wealth advisors

Account for all possessions in your will

Everything you own, from tangible property to financial assets, is part of your estate. A will documents your wishes for how your estate will be dispersed, so it’s important to account for everything that comprises your estate to ensure that nothing is left out.

This is true even if you intend to leave your entire estate to a single heir. Accounting for all of your possessions will ensure that none of them — for example, an old workplace retirement account that lists your ex-spouse as beneficiary — ends up in the wrong place.

For more on accounting for your possessions, see the NerdWallet estate-planning checklist.

Determine distribution in your will

Talk with family and friends to learn who would most appreciate certain belongings. You don't have to be overt or morbid in such conversations. The point is to get a feel for what would be a cherished bequest to a loved one and what would not. Then record which items should go to whom.

Be specific about who gets what. However, many attorneys caution against getting personal about your bequest decisions in your will. Since it's a legal document, it should contain just the language essential to convey your wishes. If you want to elaborate on your choices, leave a separate letter to your survivors. There you can explain, for example, that you left your son Joe less than his siblings because you had given Joe more financial help over the years.

As mentioned above, be sure to consider beneficiaries listed on assets such as bank accounts, life insurance policies and retirement plans. Beneficiary designations take precedence over the wishes outlined in your will. Avoid conflicts by changing your beneficiaries as needed.

Think about your children in your will

If you have minor children, you will need to decide who will take care of them once you're gone. This means naming a guardian for the kids in the event that both you and the other parent are not able to care for them. If you don't appoint a guardian, the court will have to appoint one without your input.

Name an executor for your will

This person makes sure your will is carried out, so choose an executor carefully. A neutral party rather than a family member generally is a better idea, if for nothing more than to preserve family harmony during a difficult time. Make sure your executor is a responsible person and has enough time to devote to the task.

» How does your executor distribute your estate? Learn about the probate process

If you're concerned about imposing on a family member or friend, you could name your attorney or an institution such as your bank as the executor of your will.

Factor fees into your will

If your executor is an institution, fees likely will be involved. The same is true if an attorney handles your will. If you select a friend or family member, you'll need to decide whether that person will be paid for his or her services in handling your last wishes. If so, you must determine how much.

Make your will official

Sign your will in front of at least two witnesses — you may also wish to have a notary on hand to verify the process — and store a hard copy in a safe place. This could be a fireproof safe in your home or office or a bank safe deposit box. Be sure to back up the digital version, too.

Let your spouse, executor or a trusted friend know where your will can be found. In some states, you can file a signed will with the probate court. It will remain there until it's time for your family and court to address your final wishes.

Update your will as needed

As your life and your heirs’ lives change, you may want to change your will. Did you sell an asset you had planned to leave to a child? Decide what you'll bequeath instead. Did a potential heir die before you? Choose a new recipient for the items you planned to leave to him or her.

Don't put off such updates. The court and your executor can't confirm your intentions unless you’ve put them down on paper.

Kay Bell contributed to this article.

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