Will: A General Guide
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A will, known as a last will and testament, is a legal document that outlines an individual's wishes to distribute their property and assets after their death. It is a crucial document that ensures that the person's property is distributed according to their wishes and minimizes any disputes or conflicts between family members.
Essentials of a Will
A will is a legal document outlining how a person's assets will be distributed after death. In the United States, the essentials of a will include the following:
- Declaration of Intent: The will should begin with a declaration of intent that clearly states that it is the individual's last will and that they are of sound mind and legal age to make a will.
- Appointment of an Executor: The will should name an executor responsible for carrying out the terms of the will and distributing assets to the beneficiaries.
- Identification of Beneficiaries: The will should identify the beneficiaries who will receive the assets and property of the individual after their death. Beneficiaries can include family members, friends, or charitable organizations.
- Disposition of Assets: The will should outline how the individual's assets will be distributed among their beneficiaries. It may include specific bequests of money or property or a general distribution of assets.
- Residuary Clause: The will should include a residuary clause, which directs how any assets not specifically mentioned in the will should be distributed.
- Signature and Witnesses: The will must be signed by the individual making the will and witnessed by at least two people who are not beneficiaries.
It is important to note that the requirements for creating a valid will can vary from state to state in the United States, so it is important to consult with an attorney to ensure that your will meets the legal requirements in your state.
How to Draft a Will
Below are the steps you must follow in drafting a will.
- Start with an Inventory of Your Assets. The first step in writing a will is to inventory your assets. It includes your bank accounts, real estate, investments, personal property, and other assets. Be sure to include any debts that you may owe as well.
- Decide on Your Beneficiaries. Once you have an inventory of your assets, you must decide who you want to inherit your property. You can leave your assets to anyone, but it's important to be specific about whom you leave each asset to. You can also designate alternate beneficiaries if your first choice cannot inherit the asset.
- Choose an Executor. An executor is a person who will be responsible for carrying out the terms of your will after you die. You can choose anyone you want to be your executor, but choosing someone responsible and trustworthy is important. Choosing someone familiar with your financial situation and estate planning goals is also a good idea.
- Consider Setting up Trusts. If you have minor children or other beneficiaries who may not be able to manage their inheritance, you may want to consider setting up trusts. A trust allows you to control how your assets are distributed and can provide ongoing financial support for your beneficiaries.
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Choose a Type of Will.
There are several different types of wills that you can create, depending on your needs and goals. Here are some of the most common types of wills:
- Simple Will: A simple will is a basic document that outlines how your assets will be distributed after your death. It does not include any trusts or other complicated provisions.
- Living Will: A living will is a document that outlines your wishes regarding medical treatment if you become incapacitated and cannot make decisions for yourself.
- Pour-Over Will: A pour-over will is used in conjunction with a trust. It transfers any assets not already in the trust into the trust after your death.
- Holographic Will: A holographic will is a handwritten will that is not witnessed. It is only valid in certain states and maybe more scrutinized than other wills.
- Joint Will: A joint will is a document created by two people, usually spouses, who leave their assets to each other. The surviving spouse then inherits all the assets after the other spouse dies.
- Work with an Attorney. While creating a will on your own is possible, working with an attorney is generally a good idea. An attorney can help you ensure your will is legally valid and accurately reflects your wishes. They can also help you navigate any complex estate planning issues that may arise.
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Key Terms for Wills
- Beneficiary: An individual named to inherit funds or other belongings in a legal document. Wills, trusts, and insurance policies generally name beneficiaries for "payable-on-death" accounts.
- Executor: The person designated in a will and appointed by the probate tribunal after the will-maker's demise to wind up the matters of a departed individual. In some states in the U.S., executors are called "personal representatives."
- Residue or Residuary Estate: All real estate property subject to a will not be offered away explicitly in the will. Generally, a will leaves specific valuable articles to named beneficiaries and then "the rest and remains of the estate" to another heir.
- Inheritance Tax: A state tax imposed on people who inherit property. Only a few states in the U.S. levy estate tax, and most exempt immediate family members from the tax.
Final Thoughts on Wills
A will is a fundamental statutory document in an individual's inheritance plan. It spreads out a person's final wishes about their assets and belongings. It provides thorough instructions about how to allot their possessions. Nevertheless, there are specific things a will cannot perform for a person, such as helping a household avoid probate or reducing estate taxes.
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Jason H.
Jason has been providing legal insight and business expertise since 2001. He is admitted to both the Virginia Bar and the Texas State Bar, and also proud of his membership to the Fellowship of Ministers and Churches. Having served many people, companies and organizations with legal and business needs, his peers and clients know him to be a high-performing and skilled attorney who genuinely cares about his clients. In addition to being a trusted legal advisor, he is a keen business advisor for executive leadership and senior leadership teams on corporate legal and regulatory matters. His personal mission is to take a genuine interest in his clients, and serve as a primary resource to them.
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Will
Washington
I want to leave my house to my grandson but give my daughter the right to live there as long as she lives. What kind of wording is needed in my will in WA State?
I want to leave my house to my grandson but allow his mom (my daughter) to live there through the end of her life. How do I word this in my will? The three of us have always lived together; my wife died recently.
Matthew S.
You would leave the house to your grandson while granting your daughter a life estate in the property.
Estate Planning
Will
Kansas
Can I designate a non-family member as the executor of my will?
I am in the process of creating my will and estate plan, and I am wondering if it is possible to designate a non-family member, such as a close friend or trusted advisor, as the executor of my will. While I have a good relationship with my family, I believe that this non-family member would be better suited to handle the administrative duties and ensure my wishes are carried out accurately and efficiently. I want to ensure that this decision is legally permissible and if there are any potential complications or considerations I should be aware of.
Randy M.
You don’t have to name a family member as the executor of your will. In many cases, choosing someone outside the family is not only allowed but actually a smart move. With one notable exception, no U.S. state requires your executor to be a family member. What matters most is that the person is trustworthy, capable, and legally qualified to handle the role. Why someone outside the family might be the better choice For some people, appointing a friend, a professional advisor, or even a neutral third party just makes more sense. They’re often less emotionally entangled in family matters and better equipped to make level-headed decisions during what’s usually a tense and emotional time. Also, if they have relevant experience, like being an attorney or financial planner, they may already understand what the job entails. What the law actually requires Legally speaking, most states just require that your executor be at least 18 years old and mentally competent. From there, it’s mostly about whether the person is willing and whether the state has any disqualifying rules, such as felony convictions or certain types of misconduct. Some states are stricter than others on that point. Watch out for location-based restrictions Every state allows non-family executors, but a few have extra rules for people who live out of state. For example, your chosen executor might have to post a bond, work with a local co-executor, or name someone in-state to receive official documents. Florida is the sole exception. It generally limits executors (technically called “personal representatives” there) to relatives or their spouses. But that’s the exception, not the rule. A few things to think through Choosing an executor isn’t just about who you trust. It’s also about who can realistically handle the responsibility. They’ll have access to all your financial info, need to manage assets, pay off debts and taxes, and make sure everything is distributed properly. That’s a lot to take on. Also, consider how far they live. While distance isn’t always a deal-breaker, having someone nearby can make things easier, especially when there’s paperwork to sign or property to manage. And then there’s the family piece. If you pick someone outside the family, be prepared for possible tension. Even if your choice makes perfect sense, relatives may feel hurt or suspicious. If you’re concerned about that, it’s worth having a conversation in advance to explain your reasoning. What about compensation and other options? Executors are entitled to compensation for their time and effort, usually a percentage of the estate’s value (often 2 to 5 percent), depending on the state. Just keep in mind that executor fees are considered taxable income, while inheritances typically are not. If you’re trying to strike a balance, you can name co-executors, such as a trusted friend and a family member. This can help keep everyone involved while making sure the job gets done right. Just be aware it can slow things down, since both have to agree on major decisions. And if your estate is especially large or complicated, you might want to bring in a professional fiduciary, such as a trust company, bank, or estate attorney. They charge more, but you’re paying for deep experience and institutional reliability. Before you lock in your decision, here’s what to do: 1. Double-check your state’s requirements, especially if the person lives out of state. 2. Talk to your chosen executor to confirm they’re willing to take on the role. 3. Name an alternate in case your first pick can’t serve later. 4. Spell out compensation clearly in your will, or reference state guidelines. And finally, it’s always smart to run your estate plan by a local attorney or an attorney here on Contracts Counsel. State laws can vary more than people realize, and a quick legal review now can prevent a lot of headaches later. At the end of the day, choosing the right executor is about trust, competence, and clarity. Whether they’re family or not, you want someone who can step in and carry out your wishes with care and professionalism.
Estate Planning
Will
Pennsylvania
Are any ContractsCounsel lawyers open to serving as an executor for my estate?
I'm 49, and I live in Pennsylvania. I'm not married, and I don't have any kids. My net worth around $2 million. I understand that if any lawyer is open to this arrangement, he/she would need to screen me before agreeing to serve as my executor.
Kenneth G.
Pennsylvania ethics rules permit a lawyer to serve as executor for a client, subject to PA RPC 1.7 conflict disclosure and PA RPC 1.8 Comment guidance, including advising of the lawyer's financial interest and the availability of alternative candidates. An engagement would be a long-tail fiduciary commitment, and the executor role should sit in a separate engagement letter with full Rule 1.7 disclosures, written informed consent, succession provisions, and confirmed fiduciary insurance. The engagement is ethically allowed, but there are enough structural hurdles with having a lawyer serve as executor that one may want to consider a bank or institutional executor in some cases.
Estate Planning
Will
Illinois
Can I designate a non-family member as the executor of my will?
I am in the process of creating my will and estate plan, and I am considering designating a close friend as the executor instead of a family member. My family dynamics are complicated, and I do not have a strong relationship with any of my relatives. I trust my friend's judgment and organizational skills, and I believe they would be better suited to handle the responsibilities of executing my will. Can I legally appoint a non-family member as the executor, and what factors should I consider when making this decision?
Megan W.
Yes, you can appoint anyone you want as your executor of the Will.
Estate Planning
Will
Washington
How do I exclude a child from my will?
I want to write my will and exclude an estranged son. Can I just have a paragraph stating my son's name and that he is to receive nothing whatsoever from my estate? Should I leave him $1.00? Is there a preferred approach to make sure he can't contest my will and receive anything? We've been estranged for years. Thanks.
Matthew S.
Yes, you could structure your will in that way. You don't even need to leave $1.
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