Created by FindLaw’s team of legal writers and editors.

What is the purpose of preparing a will?
A will is a legally binding document that identifies who should inherit a person’s property after they die. Recipients often include a spouse, children, grandchildren or a charitable organization. Many wills also contain a provision that names a guardian to care for minor children. A person that makes a will is called a testator.

What happens to my property and my children if I die without preparing a will?
If a person dies without a will or another legal distribution device, a state’s laws of intestate succession govern inheritance rights. Typically, a spouse (or in some states a domestic partner) and children are first in line to inherit a decedent’s property. If the deceased did not have a spouse or children, close relatives like parents, siblings, and grandparents will inherit the property. If the decedent has no relatives that qualify under a state’s intestate succession laws, the state receives the property.

If a parent of minor children dies without a will and the other parent is unable to provide care, the state determines who will become the guardian of the children and the property they inherit.

Do I need a lawyer to create a valid will?
No. State laws do not require the assistance of a lawyer when preparing a will. Because most wills only require instructions for the distribution of property and the naming of a guardian for minor children, most people can create a simple will by using software, ready-made forms or instructions from a book.

Can I make a handwritten will?
It depends on whether a state’s law recognizes a handwritten will. In about half of the states, a person may create a handwritten will, also called a “holographic” will. Unlike typed and computer-printed wills, witnesses are unnecessary for holographic wills. Some states require that the testator handwrite the entire holographic will, including the provisions, the date, and the signature. Other states are more lenient — the testator may use a fill-in-the-blank document if it contains handwritten portions, a signature, and a date.

Handwritten wills, however, may create complications. Many probate courts are hesitant to recognize the validity of these wills since they are difficult to verify.

How do I make a will valid?
When preparing a will, most states require the following elements:

  • The testator is at least 18 years old and of sound mind;
  • The inclusion of a statement that the document is the testator’s will;
  • The will is typed or computer-printed, except in the case of a handwritten will;
  • The will must have at least one provision that disposes of property or a provision that appoints a guardian for minor children;
  • The appointment of an executor; and
  • The testator and at least two witnesses signed the will.

The testator should adhere to the following guidelines when signing a will and selecting witnesses:

  • The testator must sign and date the end of a typed or computer-printed will in ink;
  • The signature should match the name that appears in the will;
  • The witnesses must see the testator sign the will;
  • The witnesses must also sign the will;
  • The witnesses should be at least 18 years old; and
  • The witnesses must not be beneficiaries in the will.

It is unnecessary to have a will notarized; however, doing so may simplify probate proceedings. See also What is a “Valid Will?”

Can I name a guardian for my children in my will?
Yes. A will can name a “personal guardian” to care for minor children if both parents are deceased or if the surviving parent is unable to care for the children. The personal guardian will have legal guardianship over the minor children until they reach the age of 18.

Can I disinherit my spouse?
In community property states, a spouse is legally entitled to half of the property acquired or earned during the marriage. While a married person may leave their half of the community property to someone other than their spouse, they may not dispose of the spouse’s share of the community property.

In states where common law governs inheritance laws, a person may choose to disinherit a spouse through a will. However, common law states protect the surviving spouse from complete disinheritance by granting the right of the spouse to claim some portion of the deceased spouse’s property by going to court.

How do I revise my will?
A testator can change a will by preparing a new will or by adding an addition called a codicil. When changes are substantive, revoking a will and starting over may be easier. An express statement in the new will of the revocation of all prior wills legally revokes a will. Minor changes, such as the addition of a new provision or the removal of a beneficiary, are appropriate changes for a codicil. See also Changing a Will.

Get Professional Legal Help Drafting Your Will
Planning your estate involves a lot of complicated and personal decisions. General guides are helpful, but a legal professional can ask questions about your situation and develop a will that does precisely what you intend it to do. If you have questions about your will, there’s too much at stake to leave it up to chance — consider calling a local estate planning attorney.

Q1: What is a will?
Ans:- A will is a legal document that expresses a person’s wishes for what should be done with his or her property after he or she dies. You can also use a will to appoint an executor, name a guardian for your children, set up property management for young beneficiaries, or forgive debts.

Q2: Who needs a will?
Ans:- Most people should have a will. Even if you don’t think you need a will to distribute your property, you may need to make a will to name an executor or guardians for your children.

Q3: What happens if I die without a will?
Ans:- If you die without a will, state law will determine who will get your property—usually, this will be your “closest” relatives, like a spouse, parents, children, or siblings. Each state has its own formula for determining the portion these close relatives receive. If no relative can be found, the property goes to the state—but this rarely happens.

Any debts owed by the estate will be paid before property is distributed to relatives.

Dying without a will is called dying “intestate.”

Q4: Who should draft my will?
Ans:- You can make a will yourself, or you can have an attorney draft onefor you. If you make your own will, use a high-quality do-it-yourself product that keeps up to date with state-specific laws.

Q5: What are the requirements for making a will?

Ans:- There are only a few requirements for making a legal will. These laws are set in state law. Here are the essentials:

  • A will must be in writing.
  • The will maker must be at least age 18 (state laws vary slightly on this).
  • The will maker must have “testamentary capacity.“
  • The will must be signed by the testator.
  • The will must be signed by at least two witnesses who will not receive anything under the will.
  • A will does not need to be notarized, however in many states, you can also make a “self-proving affidavit” which helps the will go through probate—and the affidavit must be notarized.
  • A “holographic” will—one in the will maker’s own handwriting—does not need to be witnessed. But holographic wills are problematic and should only be used when making a formal will is not an option.

Q6: Can I appoint a guardian for my children in my will?
Ans:- Yes. A will is the best place to indicate who should be your child’s guardian. Keep in mind however, that courts will not automatically appoint the person you name. A court will always consider your choice, but it will also assess the situation and then appoint the person it thinks will do the best job for your child. Also, if your child has another living parent, that parent will care for the child—the court will not name a guardian unless that other parent is found to be unfit.

Q7: Can I dispose of my property in any way I wish?
Ans:- Yes, for the most part you can give your property away however you wish, but there are a few exceptions. Your spouse may have a right to some of your property, and your children may be able to claim some of your property unless you expressly disinherit. Also, your estate will have to pay any debts that you die owing, and those debts will be paid before any property is passed to your named beneficiaries.

Q8: Is joint tenancy a substitute for a will?
Ans:- You can use joint tenancy to transfer property to a cotenant without probate, but using this method to transfer property is not a substitute for having a will. Using joint tenancy raises significant tax and ownership issues that are very different from the issues raised by passing property through a will.

Also, while joint tenancy will keep the property out of probate, it won’t allow you to appoint an executor, name guardians for your children, or create property management for young beneficiaries—all things you can do in a will.

Q9: Must the will be read to the family?
Ans:- No. The representative of an estate normally must provide notice of probate to all interested parties, but this notice is usually made by mail. A family can choose to read the will as a group, but doing so not required it is rarely desired. Also, there is nothing private about a will that would require it to be controlled or read by an attorney or other representative. In fact, when a will goes through probate, it becomes a public document – so literally anyone can read it or have a reading of it.

Q10: Can I change my will?
Ans:- During your lifetime, you can change your will as long as you retain your remain “of sound mind.”

To change your will, do not just mark up the hard copy your current will. Markings added after the original will can indicate foul play and it could cause problems. Instead, for small, simple changes – like changing the amount of a cash gift or changing the name of your executor — you can make a will codicil, which is an add-on amendment to a will. If you want to make more significant changes, make a new will instead of amending your old one.

Q11: How do I contest a will?
Ans:- To contest a will, you will have to file papers with the court explaining why the will shouldn’t be upheld as-is. You must have valid grounds for contesting a will—those include incapacity, fraud, undue influence and duress. If you want to contest a will, get help from an attorney.

Q12: What is a personal representative?
Ans:- A personal representative is the person who wraps up the estate of a person who has died. In some states, the person who does this job is called the “executor.” When a personal representative is appointed by the court (rather than named in a will), he or she may be called the estate’s “administrator.”

Q13: What are the executor or personal representative’s duties and obligations?
Ans:- A personal representative must follow state law to wrap up the decedent’s affairs. The main duties include:

  • Giving the proper notices to the proper parties
  • Collecting all the decedent’s property
  • Receiving claims against the estate
  • Paying just claims and disputing others
  • Selling estate property, as needed
  • Distributing the estate property according to the will or state law

Q14: Can I name more than one person to be the personal representative for my estate?
Ans:- Yes. You may appoint corepresentatives to wrap up your estate. However, doing so isn’t always a wise choice.
Having more than one representative can create problems if they are not able to work well together.
A better idea is to name one representative and then one or two alternates, who can serve if the first choice is not able or available to serve.

Q15: Does my personal representative have to live near where I live?
Ans:- A few states require a personal representative must live in the same state as the deceased person, but most states allow personal representatives to live out-of- state. In some cases, out-of-state representatives face additional restrictions—for example, they may have to be a blood relative, post a bond, or appoint an in-state representative to do certain tasks.

Q16: Why must an estate go though probate?
Ans:- Probate is the court process of wrapping up a deceased person’s estate. It’s the state’s way of making sure that the estate pays its debts and tax obligations and that estate property goes to the correct recipients. Probate is often time-consuming and expensive. It can be useful for some estates—especially those that are heavily in debt, because it manages communications with creditors. But for most simple, straight-forward estates, probate is a waste of time and money.

By default, your estate will go through probate after you die. But with some planning you can minimize your estate’s time in probate, or you may be able to avoid probate all together. To keep property out of probate, instead of using a will, you can use other ways to transfer property–like living trusts, property ownership with rights of survivorship, and transfer-on-death deeds or designations. Property transferred through these types of devices do not go through probate.

Also, most states have streamlined probate procedures for small estates—though “small” varies quite a bit by state.

In any case, if you want to avoid probate, you have many options, but you’ll need to learn more about probate in your state or see an attorney for help.