Last updated December 6, 2022
What is a Last Will and Testament?
The purpose of a Last Will is to leave clear instructions on how to pass on your property and finances to family members and friends. This accelerates the probate process, reduces confusion for the executor of your estate, and makes your final wishes known. For example, you can use LawDepot’s Last Will and Testament template to:
- Choose an executor
- Plan inheritances
- Leave specific gifts
- Address remaining debts
- Appoint a guardian for any minor children
- Appoint a caretaker for any pets
Why is a Last Will important?
A Last Will is important if you wish to control your property, assets, and finances after death. For example, without a Will, you wouldn’t be able to gift property to a non-relative or exclude certain relatives from claiming an inheritance.
A Last Will is especially important for parents with minor children, as it allows you to appoint a legal guardian.
If you die without a valid Will, a court-appointed administrator distributes your estate according to a pre-determined formula (defined in state law). For example, the California probate code states that an intestate person’s property goes first to their surviving spouse and any children (in varying degrees, dependent on the situation). If you leave no instructions and have no surviving family members, the state may collect your property.
Anyone over the age of 18 should use a Last Will and Testament to help avoid potential disputes or confusion regarding their estate.
What’s the difference between a Last Will, a Living Will, and a Living Trust?
Last Will vs Living Will
While a Last Will deals with your estate after death, a Living Will (also known as a Health Care Directive) specifies your health care preferences when you’re alive but incapacitated. When you’re incapacitated and cannot give consent, health care professionals refer to your Living Will for guidance on the treatments you may or may not want.
Last Will vs Living Trust
A Living Trust and a Last Will are both documents that control the distribution of your assets and property. However, a Living Trust does not need to go through probate, which can lower the cost and time it takes to distribute your assets after death.
What is the best way to create a Will?
It’s best to create your Last Will and Testament when you have time to carefully consider the distribution of your estate. It’s also important to adhere to your state’s laws for creating a valid Will. Often, this means creating your Will with a word processor on a computer, printing a physical copy of it, and signing it with the appropriate witnesses. For example, Texas probate code states that a valid Will must be in writing and signed by the testator and at least two credible witnesses.
To avoid legal challenges to the validity of your Will, you must create it when you are of legal age and sound mind. Having the legal capacity to make a Will means you understand:
- What a Will is
- That you’re making a Will
- Your relationship to the people mentioned in your Will
- The types and amount of property you own
- How you wish to distribute your property
Use LawDepot’s Last Will and Testament template to ensure you cover all aspects of your estate. Our questionnaire guides you through the process and saves your work, so you can update your Will anytime you need. Select your state to choose the template that complies with local laws. We’ll also provide state-specific instructions to help you execute your Last Will and Testament properly.
How do I write a Last Will and Testament?
1. Record the testator’s information
You’re known as the testator (or testatrix) when you write a Will. Include your full name and address.
2. Name an executor
The executor of your estate is legally bound to follow the instructions left in your Will. You can also name a backup executor in case your original choice is unavailable.
3. Add beneficiaries
List the people or organizations you wish to inherit your estate once your debts are settled. This may include any living children, extended family members, friends, or charities that are meaningful to you.
4. Provide for children and/or pets
Appoint a legal guardian for your children or a caretaker for your pets. Include any instructions for specific levels of care and allocation of funds.
State if you want to delay the inheritance of any minor children until they reach a certain age. If you do want to delay, state the age your children must be to receive their inheritance.
5. Sign the document
Review your Will to ensure it’s free of errors and accurately reflects your wishes. Sign the document according to your state laws (LawDepot provides state-specific instructions to guide you in this process).
Can I give away all of my property in a Will?
You can give away most, but not all, of your property in a Last Will. Typically, you cannot use a Will to give away:
- Life insurance
- 401(k) plan assets
- Pension plan assets
- Retirement plan assets
- Property held in a trust
- Matrimonial home held jointly
Life insurance, 401 (k) plans, pension and retirement plans, and annuities allow the holder to specify a beneficiary, which is why these assets do not go through a Will.
Does a Will allow me to specify care for my pets?
Yes, you can designate a caretaker for your dog, cat, or other pets within your Last Will and Testament.
LawDepot’s Last Will and Testament template includes a section that addresses any pets you have, who their caretaker should be, and how much money to allot to their care.
If you wish to provide specific details about the kind of care your pet needs, use the additional details section to write your own clause. For example, you may wish to cover certain health conditions, medications, or treatments your pet has or needs.
Can I make a gift to a charity in my Will?
People often create what’s known as a legacy gift when designating a charity as a beneficiary in a Last Will and Testament. You can gift certain items, property, a sum of money, or a percentage of your estate.
To add a non-profit organization as a beneficiary, you’ll need its Employer Identification Number (EIN), also known as a federal Tax Income Number (TIN). This is a unique nine-digit number that identifies the organization. Contact the charity for more information on how to leave them a legacy gift.
Do I need to notarize my Last Will and Testament?
Although laws vary by state, you typically don’t need to notarize your Last Will and Testament in order for it to be valid. Doing so, however, may accelerate the probate process. In this case, a commissioner of oaths or notary public confirms the identities and signatures of you and your witnesses.
LawDepot’s Last Will and Testament template includes a Self-Proving Affidavit. When notarized and executed properly, this document helps prove the validity of your Last Will and may eliminate the need for witnesses to testify in court.
When should I change or revise my Last Will and Testament?
Review and make any necessary changes to your Last Will and Testament when:
- Your relationship status changes (married, separated, or widowed)
- You have children
- You gain/lose a significant amount of property or assets
- You wish to disinherit someone
Use a Codicil to make a minor change to your Will. Minor changes can include additions, substitutions, or deletions of clauses (e.g., changing who you appoint as a legal guardian to your children).
You should create a new Will and revoke any prior documents if you need to make extensive changes (like removing an ex-spouse or adding several new beneficiaries). This helps avoid confusion when authorities need to administer your Will.