Last Will and Testament: Steps and Conditions to Make it Valid
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A last will and testament is a legal document that outlines a person's instructions on their specific property and communicates their final wishes to everyone. The testament can address issues with dependents, account administration, and financial interests. Let us learn more about the important aspects of a last will and testament below.
Last wills and testaments determine how probate courts treat your estate upon your passing. Drafting and signing a will is an important matter to address during your lifetime since there are adverse effects of not having one. You can make probate proceedings easier on your surviving family members by finalizing your will as well.
The blog post below details everything you need to know about having and writing a last will and testament:
What is a Last Will and Testament?
A last will and testament, also known as a will, is a legal document that expresses your final wishes to the probate court when you die. They allow you to leave your assets to heirs as well as name guardians for minor dependents. Probate courts will use your last will and testament when closing out your estate.
There are several types of wills, including:
- Deathbed wills. A will created while the person is approaching death.
- Holographic wills. Instead of requiring witnesses, this type of will must be hand written in the person’s own handwriting.
- Joint wills. A will written by two or more people, often used by married couples, that acts as a will for each of them.
- Living wills. Also known as an advance healthcare directive. Specifies what actions should be taken if you are medically no longer able to make decisions for yourself.
- Nuncupative wills. A will given verbally by a person who is too sick to execute a written will. Only legal in certain jurisdictions.
- Online wills. A will created with the help of online tools.
- Pour-over wills. A will that puts your assets into a trust, which already existed during your life, to be distributed by the trustee.
- Simple wills. A will that simply identifies who will inherit your belongings.
- Testamentary trust wills. A will that puts your assets into a trust that will be created upon your death.
If you don’t possess a signed last will and testament, most states default to per stirpes probate laws. Per stirpes probate laws are the default probate laws of your state, which means that you or your family have no control over the outcome of your estate’s closing. For example, a financially irresponsible child could suddenly receive a large sum of money that you would have never given them if you were still alive.
Three Conditions to Make a Will Valid
One primary function of a probate court is to establish the validity of the living will . The probate judge will carry out the instructions within your last will and testament as long as it meets three conditions. If it doesn’t, then you pass with an estate intestacy, which follows its own default procedures as well.
The exact conditions for a valid will vary from state to state, but there are some core requirements shared by many states:
- At Least 18 and of Sound Mind: You must be at least eighteen (18) years old to create a will. The other element of this condition is that you are also of sound mind. This specification’s purpose ensures that an individual is competent to decide how their assets should be divided upon death and not manipulated by anyone seeking to profit.
- Put in Writing and Signed: You must sign your written last will and testament before your passing or by someone who had the authority to sign for the will’s maker, such as a power of attorney. Additionally, it’s essential to sign it in the physical presence of two witnesses. Handwritten wills are perfectly valid in many states and can be easily identifiable as valid when written in your penmanship.
- Stamped by a Notary: If a will is notarized at the time of its execution and witnessing, it’s considered self-proving. On the other hand, unnotarized wills aren’t necessarily validated. Unfortunately, a missing notarial seal may lengthen the probate process due to the added steps for authentication.
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Steps to Write Your Last Will and Testament
As far as vital documents go, your last will and testament is at the top of the list. This legal document will eventually serve as the basis for your estate closing strategy. It makes a difference between a smooth estate settlement with the property going to the right people and caring for minor-aged children.
While consulting with an estate planning lawyer is recommended, many people prefer to do it themselves. The eight steps below will provide you with the information you need to draft a valid will:
- Make a list of your distributable assets.
- Write down the names of your heirs and assets they receive.
- Name a personal representative to manage the estate, like a spouse.
- Find a last will and testament sample to guide you through writing it.
- Print a copy of your final draft for signing.
- Find two witnesses and visit a notary public for signatures.
- Scan a digital copy of your will and make several hard copies.
- Place the original in a secure location, such as a safe deposit box.
Review your last will and testament every two or three years and make changes as necessary. If you need to make changes, you will have to restart the formalized signing process as outlined in Step 6 of the preceding list. Ensure that you let someone close to you know about the existence of the will, such as a spouse, adult-aged child, sibling, or parent.
Last Will and Testament Templates
Never Include These Items in Your Will
You should never put certain assets and provisions in your will, including jointly owned property, bank accounts, and pet provisions. If you want to specify these terms, you should consider drafting a living trust and a durable power of attorney (DPOA) for a complete result.
Here is more information about items you should never put in your will:
- Joint Tenancy Real Estate: Jointly held property automatically grants the other party a right of survivorship. Regardless of what the will says, your share of the property passes directly to the surviving joint tenant upon your death. There is no need to include joint tenancy real estate provisions in your will.
- Beneficiary Life Insurance Policies: Insurers automatically distribute life insurance proceeds to the beneficiary, much like joint tenancy real estate, upon your passing. Proceeds from retirement plans, such as pensions, IRAs, or 401(k)s, are separate from the probated estate.
- Funeral Arrangements: Funeral arrangements are generally one of the first items on the agenda following someone’s death. As such, it doesn’t make sense to discuss funeral plans at probate proceedings, which can take place several months later. Instead, you can specify funeral arrangements in an advance healthcare directive.
- Illegal Bequeathments: While it’s hard to believe, some people try to leave illegal assets to heirs, including drugs, illegal game trophies, and illegally operated businesses. They may also try to impose illegal conditions upon the heir to receive their distributed shares. If this situation arises, then an invalidation of a will may occur, and a probate judge will oversee the closing of your estate instead.
- Special Needs Arrangements: It’s possible to make arrangements in the event of your incapacitation. However, a will isn’t the appropriate document for executing such a legal strategy. Certain trusts, such as special needs trusts , are explicitly designed to address the management of a disabled person’s unique needs. You can also increase decision-making capacity by adding a medical power of attorney or limited power of attorney.
- Pet Provisions: Animals lack the legal capacity to acquire property. As such, many loving pet owners leave the pet with care instructions. However, a will doesn’t convey these needs, and a living trust will better suit pet provisions.
Wills vs. Last Will and Testament
A last will and testament is a will and vice versa. People can use the terms interchangeably. There are different types of wills, but they are all generally referred to as the same document.
Benefits of a Last Will and Testament
A last will and statement provide several benefits. However, everyone must be aware before proceeding with the legal document.
- Provides Help of a Designated Executor : One can designate an executor in the will who will manage the estate's affairs and care for the possessions until the estate's assets are transferred to new owners following the conclusion of probate.
- Offers Flexibility to Choose a Guardian: A person can name a guardian in their respective will if they cannot raise the children until the latter become responsible adults.
- Establishes Trust: A will can also establish a trust that helps safeguard care for a child or a loved one. Most of the time, such a person cannot manage an inheritance independently.
- Aids in Estate Planning : Will-based estate planning can reduce tax repercussions. Thus, it aids in protecting more assets for beneficiaries.
- Makes Charitable Contributions Easier: It facilitates the process of leaving a legacy by specifying charitable donations and ensuring that the testator 's philanthropic wishes are fulfilled.
- Enables Asset Protection : By including provisions in the will, the testator can protect certain assets from being sold or misused until specific conditions are met, such as a beneficiary reaching a certain age.
- Expresses Wishes for Personal Belongings: It allows the testator to express their wishes for the distribution of sentimental or personal belongings, ensuring they go to those who will cherish them.
- Caters to Dependents: A will enables the testator to provide for dependents who may not be legally entitled to inherit, such as stepchildren or unmarried partners.
- Enables Family Business Succession : It can facilitate the smooth transition of a family business by specifying who will take over its management and ownership.
- Supports Special Needs Individuals: A will allows for the creation of a trust to financially support loved ones with special needs without jeopardizing their eligibility for government benefits.
- Expresses Funeral and Burial Wishes: The will can be used to express the testator's wishes regarding their funeral arrangements and burial preferences.
- Reduces Probate Delays: Properly executed wills can expedite the probate process, allowing beneficiaries to access their inheritance more quickly.
- Facilitates Estate Administration: It provides a roadmap for the executor, simplifying the process of administering the estate and ensuring that the affairs of the deceased are handled efficiently.
- Protects Minor Children: The testator can appoint a guardian for their minor children, ensuring they are cared for by someone they trust in the event of their untimely passing.
- Secures Unmarried Partners: If the testator is in a long-term unmarried partnership, a will allows them to provide for their partner financially and ensure they receive assets or support.
- Expresses Wishes for Digital Assets: The will can specify how the testator's digital assets, such as online accounts and social media profiles, should be managed or closed after their passing.
- Helps Minimize Family Conflicts: A well-drafted will can help minimize family conflicts and disagreements by clearly stating the testator's intentions and instructions for asset distribution.
Final Thoughts on Last Wills and Statements
A last will and testament is an essential legal document that gives a person the power to decide what will happen to the estate, how to protect their loved ones, and leave a lasting legacy. With the assistance of solicitors, a person can guarantee that their last wishes are carried out and give their family the support and guidance they require during a trying time by drafting a thorough will. However, drafting a will is not everyone’s cup of tea. So, the person may seek help from a professional lawyer to draft the legal document without any errors or discrepancies.
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Steven W.
Attorney Steven Wax is ardent about helping his clients. Whether creating personalized estate plans, drafting and negotiating contracts or other legal matters. Steven’s goal is to assist and counsel his clients to protect them and their loved ones. Steven grew up on Long Island, New York. He attended the University of Massachusetts in Amherst earning a BS in Sport Management. He earned his paralegal certificate at Duke University and earned his Juris Doctorate from North Carolina Central University School of Law in Durham, NC. Steven has an extensive legal career in the life science sector, working for some of the world’s largest Contract Research Organizations since 2013. Steven has negotiated a broad range of contracts for both businesses and individuals. Steven participated in the NCCU Elder Law Project, where he prepared wills, durable powers of attorney, living wills, and health care powers of attorneys for low/fixed income clients in Durham and surrounding counties. Steven finds meaningful ways to share his skills and passion with his community. Steven volunteers his time to Wills for Heroes, which provides no-cost estate planning documents to first responders and their families, through the NC Bar Foundation.
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Samuel R.
My career interests are to practice Transactional Corporate Law, including Business Start Up, as well as Real Estate Law, Estate Planning Law, and Intellectual Property Law. I am currently licensed in Arizona, Pennsylvania and Utah, after having moved to Phoenix from Philadelphia in September 2019. I currently serve as General Counsel for a bioengineering company. I handle everything from their Business Transactional Agreements, Private Placement Memorandums, and Corporate Structures to Intellectual Property Assignments, to Employment Law and Beach of Contract settlements. Responsibilities include writing and executing agreements, drafting court pleadings, court appearances, mergers and acquisitions, transactional documents, managing expert specialized legal counsel, legal research and anticipating unique legal issues that could impact the Company. Conducted an acquisition of an entire line of intellectual property from a competitor. In regards to other clients, I am primarily focused on transactional law for clients in a variety of industries including, but not limited to, real estate investment, property management, and e-commerce. Work is primarily centered around entity formation and corporate structure, corporate governance agreements, PPMs, opportunity zone tax incentives, and all kinds of business to business agreements. I have also recently gained experience with Estate Planning law, drafting numerous Estate Planning documents for people such as Wills, Powers of Attorney, Healthcare Directives, and Trusts. I was selected to the Super Lawyers Southwest Rising Stars list for 2024 - 2026. Each year no more than 2.5% of the attorneys in Arizona and New Mexico are selected to the Rising Stars. I am looking to further gain legal experience in these fields of law as well as expand my legal experience assisting business start ups, and also trademark registration and licensing.
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I help small businesses, entrepreneurs, and business owners draft, review, and negotiate the agreements behind their operations and transactions. My work includes service agreements and MSAs, LLC operating and shareholder agreements, business purchase documents, commercial leases, independent contractor agreements, and NDAs. My approach is practical: understand what you are trying to accomplish, identify the terms that materially affect the deal, and deliver clear, usable documents without unnecessary complexity. For reviews, I focus on meaningful risks and proposed solutions, with redlines and plain-English explanations. I offer fixed-fee services for defined projects, from a single contract review to a broader business transaction. Each proposal identifies the deliverables, revision scope, and expected turnaround so you know what is included before we begin.
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Probate
Last Will and Testament
Tennessee
Is a deed of trust enough to prove ownership of a home when a spouse dies intestate in Tennessee?
My stepfather just passed away intestate. He has 2 adult children from a previous marriage. My mother (the widow) does not believe her name is on the property deed, but knows her name is on the Deed of Trust for their home. The home was purchased after marriage, as a couple. They resided together in the home for nearly 20 years. She is worried she will lose their home to intestate succession laws.
Forest H.
It is unlikely that she will lose the home. She has certain rights to a spousal share of his estate regardless of the surviving children or the title to the home. She would certainly benefit from speaking with a local probate attorney who can assist her in protecting her interest.
Estate Planning
Last Will and Testament
California
Can I create an estate plan without the help of a lawyer?
I am in my mid-fifties and have recently been diagnosed with a terminal illness. I have a large estate that I would like to be distributed to my family and friends when I pass away. I have done some research and understand the importance of having an estate plan, but I am not sure if I am able to create one without the help of a lawyer. I am looking for more information that will help me make the best decision for my family and myself.
Philip M.
You can certainly go ahead and fill out simple forms to complete some easy estate planning documents like wills, but for more complicated documents like a trust (which is required if you want to avoid probate) it can get a little trickier. Further, anyone can fill in the blanks, but an experienced attorney will be able to explain what the document does and how it meets your wishes best. Hope this helps.
Family Law
Last Will and Testament
Oklahoma
I was in a common law marriage to this man for aprox 8 years in oklahoma. He suddenly passes away unexpectedly. During our relationship we purchased some property put a travel trailer on it. Moved a bldg which we added on to for laundry room and storage. We built fences worked the land together. The vehicles / 3 and travel trailor were in both our names. Bank accounts were only in his name. Savings account etc. The land was only in his name. He had an old will I wasn't part of that reading don't know what went on. He had no living children . Had 2 grandchildren that was taken very well of with his life ins. What am I to get legally. WE live in oklahoma.
Common law marriage spouse suddenly dies. He had no living children or parents. One brother 2 sisters and 2 grandchildren. One being an adult now I think. What do I legally get to keep?
Alan B.
Once a common law marriage is recognized, your legal entitlements mirror those of any legally married spouse. However, you must assert and demonstrate your common law marriage by clear and convincing evidence. Based on the details provided, this evidence might include, but is not limited to, cohabitation, joint ownership of vehicles and travel trailers, a long-term and exclusive relationship, and presenting yourselves publicly as husband and wife. In summary, under Oklahoma law, a common law marriage affords you the same rights as a traditionally married spouse, provided that you can substantiate your claim with clear and convincing evidence. As to what you would be entitled to, should you find yourself excluded from the will (as it appears you were), it would be within your rights to petition for the reopening of the probate process to claim your spousal share. If there was property outside of the will that needs to distributed, that may also need to be submitted for probate. Keep in mind that entitlements and the process to claim them can vary significantly based on the specifics of each case. Determinations on how to proceed are always fact-specific, and an Oklahoma lawyer specializing in family and estate law can assist you in getting what you would be entitled to as a common law spouse.
Estate Planning
Last Will and Testament
Georgia
I had an Alabama elder care lawyer create my POA, will, etc. Now I am living permanently in Ga. Is my paperwork still good or do I need to get it reviewed and updated in Ga.
widowed and living alone
Allen L.
The short answer is: your Alabama documents are most likely still legally valid in Georgia, but a Georgia attorney review is strongly recommended — especially given your situation living alone and widowed. Here is the breakdown: Will Georgia recognizes a will validly executed in another state as long as it was properly signed and witnessed under that state's law at the time it was made. Alabama and Georgia both require two witnesses, so your will should be fine. That said, if your Alabama will names your spouse or references Alabama-specific assets, accounts, or property that has since changed, it absolutely needs updating for that reason alone. Power of Attorney Georgia adopted the Uniform Power of Attorney Act in 2017. Georgia will generally honor a POA validly created in another state. However, Georgia has specific statutory language that banks, hospitals, and other institutions are accustomed to seeing. If your Alabama POA does not track Georgia's statutory form, some institutions may resist honoring it or ask for additional paperwork, which can cause serious delays in a crisis. Having a Georgia-compliant POA dramatically reduces that friction. Healthcare Directive / Advance Directive This is the most important one to update. Georgia has its own Advance Directive for Health Care form that combines a living will and healthcare proxy. Georgia medical providers are trained on this specific form. An Alabama healthcare directive may be legally valid here, but you may encounter real-world resistance from hospitals and doctors who are not familiar with it. A Georgia-specific advance directive is highly advisable. Practical Concerns Given Your Situation Living alone and widowed means your agent under your POA and your healthcare proxy are your first and only lines of protection if something happens. You want zero friction when those documents need to be used. This is not the situation to test whether an out-of-state document will be accepted in a moment of urgency. You should also confirm that whoever you have named as your agent, executor, and healthcare proxy is still the right person, still willing, and still able to serve. Bottom Line Your documents are not void, but getting them reviewed and updated for Georgia is genuinely worth the time and cost. At a minimum, a new Georgia Advance Directive for Health Care and a Georgia-compliant Durable POA should be strongly considered. While you are at it, confirm your beneficiary designations on any life insurance, IRAs, and bank accounts, as those pass outside your will regardless. Next Step The easiest way to get this handled is to open a project on ContractsCounsel at www.contractscounsel.com. You can post your document review and drafting project there, receive competitive flat-fee bids from Georgia-licensed attorneys who handle exactly this type of elder law work, and get everything updated without having to search for a lawyer on your own. It is a straightforward process and puts you in control of the cost upfront. Given your situation, this is one of those things that is well worth getting done sooner rather than later.
Estate Planning
Last Will and Testament
Florida
What is a will, and why is it important to have one?
I am a married adult with two children and I am looking to secure my family's future. I am concerned about what will happen to my assets and my family if something were to happen to me. I want to make sure that my wishes are respected and that my family is taken care of, so I am looking to learn more about wills and how they can help me.
Diane D.
A will allows you to select the persons who you want to receive what you own when you die. Without a will, the court may step in and distribute your assets according to your state's law. With a will, you control what happens with your property, and you can leave specific property to specific persons, and you can appoint specific persons to manage and handle distributing your property. Having a Will can save your heirs significant expense during probate and prevent feuding among them.
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