How to Write a Will: The Ultimate Guide

A will, sometimes called a last will and testament, is a legally enforceable document specifying how you want your assets and obligations to be distributed after your death.

An asset refers to a tangible or intangible possession that has economic worth, such as land, houses, vehicles, or financial securities. A will can additionally include the allocation of obligations, such as appointing a guardian to care for your children or pets or delegating choices about medical care as stated in a living will.

The majority of individuals are averse to contemplating their mortality, and writing a will seems like a daunting task. However, it is crucial to stress the importance of having a will since it is the best way to ensure that your loved ones are taken care of in your absence.

Several methods and frameworks may be employed when drafting a will, and the task of making a will without expert assistance might be more intricate than anticipated. To make a valid will, one should adhere to their respective state laws on will writing, but certain elements are generally applicable across most states; this guidance will aid you in understanding the fundamentals needed to make your will legally enforceable.

11 steps on how to write a will

For convenience of comprehension, we have divided the will drafting procedure into 11 phases, starting with the determination of your assets and liabilities and ending with reviewing and updating your will.

1.    Determine your assets and liabilities

The sum of a person’s assets minus their obligations is their estate. While assets are tangible or intangible possessions that hold economic worth, liabilities are financial responsibilities that one owes to another person, such as taxes and loans.

Before drafting your will, it is essential to ensure that you possess a comprehensive inventory of all your assets. You need to know which assets cannot be included in your will as well, such as joint tenancy property or life insurance proceeds that already have a beneficiary assigned. Once you have your assets and liabilities accounted for, you have set the base for drafting your will, and your executor will be relieved from the need to investigate the extent of your assets and obligations, which will save time and facilitate more efficient administration of your estate.

2.    Choose your beneficiaries

A beneficiary is an individual or entity legally eligible to receive an inheritance from the estate of a deceased person. It might be more than one individual or organization. When deciding on a beneficiary, it is advisable to select those who might experience financial hardship following your demise or those whom you simply want to inherit you, such as a spouse, children, parents, siblings, and charitable organizations.

Once you have conducted a comprehensive inventory of your assets and liabilities, assign a specific beneficiary(s) to it. You must select a beneficiary or beneficiaries as the recipients of your assets if you want them transferred per your intentions. It aids in guaranteeing that the intended recipients receive what is meant for them. Be careful to provide each beneficiary’s entire name to prevent any future mistakes or issues. In addition, you may select contingent beneficiaries who will receive your assets if your primary beneficiary is unwilling or unable to do so.

3.    Appoint an executor

Selecting an executor is a crucial aspect of creating a will. The executor is moreover referred to as a personal representative and is the individual or entity entrusted with administrating your estate. The executor will take your will to probate court and, subject to settling any liabilities of the estate, will transfer assets to their intended beneficiaries and wind up any estate matters that will be pending.

Although many individuals choose to designate their estate planning attorney as the executor of their estate, the person you choose to serve as your executor can be anyone. Still, they shouldn’t be convicted felons; they must be legal adults over 18 years and, in some states, must be residents of the testator’s state. Whoever you choose to be your executor must be someone you trust who will honor your wishes; this will be evident by the person’s character. Where no one is designated or appointed executor, the responsibility will fall on the courts; ensure you have provided their full legal name to avoid doubt.

4.    Choose a guardian for minor children

Parents may rest easy knowing that their children will be well-cared for in the unfortunate event that they can no longer do it themselves by designating a guardian for their children. When you fail to appoint a legal guardian before your demise, the court will use its authority to choose the individual responsible for the care and well-being of your children, which might be contrary to your wishes. 

Pick a reliable individual and make sure their complete legal name is listed as the guardian. You should additionally consider the intended guardian’s capability and whether or not you need co-guardians. It is equally prudent to have a consensus with your partner on the same guardian (s) and discuss the issue with your intended guardian to avoid disputes.

5.    Decide on specific gifts and bequests

Deciding on specific gifts and bequests involves identifying the assets in the will and their corresponding beneficiaries. You may include particular desires about the allocation of your assets or remarks that elucidate your rationale for choosing each beneficiary and their allocation. Where a gift or bequest ceases to exist at the time of the testator’s death, it cannot be replaced with another.

6.    Write a residual clause

A residuary clause encompasses all assets that have not explicitly been bequeathed to a particular beneficiary and have either been insufficiently described or inadvertently omitted from the assets section of the will. The residuary clause further includes the assets scheduled to go to your beneficiaries but were never received, whether because they died before you or for some other reason. These assets form the residual estate or estate residue. They may be designated to a specific beneficiary called a residuary beneficiary or remainder beneficiary in the residual clause or left to the executor’s management.

Typically, the residuary clause starts with the phrase, “I give all the rest, residue, and remainder of my estate….”. Designating several individuals as residuary beneficiaries might lead to ambiguity over the division of assets. Still, you have the option to choose the proportion that will be allocated to each recipient. In the absence of a residuary clause, the probate court will determine the distribution of any remaining assets by the rules of the state governing intestacy.

7.    Draft the will

It is now time to draft your will: title your will “Last Will and Testament,” give your entire legal name, address, and other identification details, state that you are of sound mind and memory, making the will voluntarily, free from duress or undue influence, of legal age, fully aware of the essence and consequences of the will, and cancel prior wills.

Ensure you include provisions for listing your assets and obligations, choosing your beneficiaries, designating an executor, naming a guardian, leaving assets to heirs, and a residual clause.

Furthermore, reviewing your state’s legislation to confirm that you are in compliance and possess a legally binding will is advisable. Include a provision for including signatures from both your witnesses and yourself and a date on the will.

8.    Sign the will

Have a provision for your signature and those of your witnesses. Your signature is the portion of your will that constitutes a legally binding instrument. But it will only be legally binding if you sign it with witnesses. As a general rule, wills need the signatures of witnesses as well. As the testator, you must fulfill specific criteria while affixing your signature to the document; you must be of sound mind and legal age. On the other hand, witnesses sign to verify that you were of sound mind at the time of signing the will.

Presently, every state mandates a minimum of two witnesses. It is customary for witnesses to see your signing while they are in the same room as you, and in the presence of the testator, each witness puts their signature on the will. Having everyone sign at the same time is preferable, yet there are cases where this is not the case, but doing so aids in preventing future issues.

While there may be some variation among states regarding witness qualifications, legal capacity and impartiality are some of the essential qualities. In impartiality, disinterested witnesses are desired. Disinterested witnesses have nothing to gain or lose by your will. States have different rules on the legal capacity of witnesses; with some exceptions, most states mandate that witnesses be 18 years or older.

9.    Have the will notarized

A will that is not notarized but is correctly written in any state other than Louisiana is nonetheless legally binding. Notarizing your will occurs on the self-proving affidavit attached to it rather than directly on the will itself. The notary is accountable for the execution of the jurat and the administration of an oath to the testator and the witnesses, and only the signature is being authenticated, not the contents of the will; the legality of the will is contingent only upon legal circumstances.

Where a disagreement arises and the will is not notarized, the witnesses must go to court and testify that the person who made the will was mentally capable of doing so and not influenced by anybody when they signed it. It is, therefore, advisable to have a will notarized to make it self-proving, meaning that the court can accelerate the probate procedure without summoning witnesses to testify on the testator’s testamentary capacity.

10. Store the will safely

It is wise to ensure the safety and preservation of the will while ensuring your executors can easily access it in the future. Regardless of the method you pick to store your will safely, it is essential to ensure that the will is secure and readily available to your executors after your death. Where your will cannot be found, the court often treats the situation as if you never had one, and your inheritance is distributed according to the intestacy provisions specific to your state. Some common places to store wills are a safety deposit box, a fire-proof safe, and an attorney’s office.

11. Review and update regularly

Ensure that you periodically review and revise your will, regardless of whether significant life events occur. Your assets and liabilities inventory may change, and your perspectives on beneficiaries and preferences on the distribution of assets may evolve too. It is best that your will reflects your current assets and latest distribution desires.

When should you first make a will?

Typically, it is most advisable to draft a will when acquiring assets to guarantee their desired distribution after one’s demise.

What is a good age to write a will?

Anyone who has amassed assets after reaching the age of 18 should consider writing a will. However, your situation dictates the optimal time to draft a will. 

What happens after you write your will?

After writing your will, you should:

1.   Check the will’s validity. It is crucial to ensure that you fulfill all the legal requirements for a valid will. You can do this by perusing your state laws to ensure compliance or having a professional will-maker, such as an attorney, examine the will’s validity for you.
2. Sign your will per your state’s rules, and it is advisable to have it notarized too.
3. Store your will safely. It is crucial to store your will in a highly secure area that only you and authorized others, such as an executor, can access when the time comes.
4.   Update and revise your will to have an updated will.

What are the available options to write a will?

Writing a will may be done in several ways:

1. Do-it-yourself (DIY) wills. The testator drafts Do-it-yourself (DIY) wills without the help of a professional. One may purchase a DIY kit online or from physical shops near them for guidance. You may draft and validate your own will with the help of these kits, which include all the necessary instructions, forms, and samples. DIY wills are often the cheapest option to write a will.
2. Online will writing services. You may get free templates or have to pay for a customized will. Using online will writing services is often cheaper than using an attorney. You can engage the services of a will-writing expert either in person or online. LegalPen provides a top-notch online writing service.
3.   Use of an attorney. The majority of individuals opt for the conventional approach of engaging the services of an attorney to draft their will since having a skilled expert intimately involved in the process may provide a sense of security. However, the use of an attorney is usually more expensive and time-consuming than the other methods.

What happens if you don’t make a will?

When a person dies without making a will, they die intestate, and the court applies intestacy laws. Each state has its own prescribed intestate procedure that decides the distribution of a person’s assets. Without a will, the court is tasked to determine your intentions. Typically, the estate is immediately transferred to the deceased’s spouse in most states. For unmarried individuals, it is transferred to their children or parents.

Can you write a will without a lawyer?

Yes, you can write a will without a lawyer, but this is discouraged. We suggest consulting a professional will-maker to prevent your will from being deemed invalid and subject to state intestacy laws, which might result in a probate court determining how your assets are divided. 

Do I need to notarize my will?

No, you only need to notarize your will if you reside in Louisiana. Louisiana is the sole state that mandates a will to be notarized. Nevertheless, in case of a disagreement, if the will lacks notarization, the witnesses must attend court and give testimony confirming that the testator was mentally capable and not unduly influenced when they signed the will.

Is validity considered when writing a will?

Yes, validity is considered when writing a will. Although the particular legal prerequisites for creating a will differ from state to state, it is essential to be mindful of a few fundamental elements. In general, a will is considered invalid unless it satisfies the following vital elements:

1.   Minimum Age Required by Law. You must be at least 18 years old to create a valid will, with the exception of two states: Georgia and Louisiana, where the minimum age is 14 and 16, respectively.
2.   Sound mind. The testator must be of sound mind; this often implies that the testator must be conscious and aware of what they are doing and must be an adult, 18 years or older. Certain states moreover require the testator to comprehend the will’s asset disposal.
3.   Clarity of purpose. You must specify that the document you are drafting should be used as a will. The phrase “Last Will and Testament” is a common way for people to express their intentions in a will.
4.   Proper execution. The testator is required to sign the will in the presence of witnesses. Most jurisdictions need the signatures of two witnesses who observe the testator signing the will and who must be at least eighteen years old; other states additionally require the signatures of three witnesses. Certain states expressly demand the signatures of disinterested witnesses.

How to make a will legally binding

Since several states have different rules regarding the validity of a will, the only surefire method to ensure your will is legally enforceable is to follow those laws. Where you intend to write the will entirely on your own, it is wise first to become acquainted with your state’s legal requirements. After making the will, you can have a professional will-maker look it over for validity. It is, however, best to hire a professional will-maker to draft the will on your behalf to ensure compliance with your state laws and have a legally binding will.

Can you just write your will on a piece of paper?

Yes, you can write your will on a piece of paper. Handwritten wills are generally accepted in most states, but the testator should gather witnesses who can attest to their handwriting in case anyone challenges the will’s validity.

Holographic wills refer to handwritten wills that are authored by the testator, the person creating the will, and without witnesses or notarization. A handwritten will that fulfills all the legal prerequisites of a typed will, including being witnessed or notarized, is considered a legitimate will. However, it should be noted that it does not qualify as a holographic will.

States that recognize Holographic wills are Alaska, Arizona, Arkansas, California, Colorado, Idaho, Kentucky, Louisiana, Maine, Michigan, Mississippi, Montana, Nebraska, Nevada, New Jersey, North Carolina, North Dakota, Oklahoma, Pennsylvania, South Dakota, Tennessee, Texas, Utah, Virginia, West Virginia, and Wyoming. Some of these states stipulate that the testator must write the whole will. In contrast, others necessitate that the essential sections, which identify the asset and its beneficiary, be in the testator’s handwriting. In addition, several states, like California, Louisiana, Michigan, Nebraska, and Nevada, mandate that the will include a date.

How much does it cost to write a will using a lawyer?

The cost of writing a will without a lawyer can average between $300 to $1,000 or an hourly billing of $150 per hour. The cost of drafting a will can vary significantly based on factors such as geographical location and the complexity of one’s estate. Another factor is the lawyer’s rates since lawyers have different rates. Lawyers may opt to charge flat rates or employ hourly billing. Please refer to our article “What is the cost of writing a will” for more.

How to write a will in Texas

To write a will in Texas, you must:

1.   Have your will in a written format
2.   Be at least 18 years of age. This provision is exempt for those who are married or in the military
3.   Have mental capacity and soundness of memory
4.   Exercise your autonomy and willingly create your will
5. Affix your signature to your will while being observed by at least two qualified witnesses, who must then provide their signatures.

Please refer to our article “Will Writing Service in Texas” for more information.

How to write a will in California

To write a will in California, the requirement are;

1.   You must be 18 years or older
2.   You must have the mental capacity to execute a will
3.   Wills must be freely and willingly formed
4.   Two impartial witnesses are required to witness your will.
5.   A legal will in California must be in written form.

Please refer to our article “Will Writing Service in California” for more information.

How to write a will in Florida

To make a will in Florida, you need to:

1.   Ensure that you are either 18 years old or an emancipated minor
2.   Be of sound mind
3.   Exercise your autonomy and willingly create your will
4.   Affix your signature to your will while being observed by a minimum of two qualified witnesses, who must  provide their signatures as well
5.   Have the will in writing

Please refer to our article “Will Writing Service in Florida” for more information.

How to write a will in Georgia

To write a will in Georgia, the requirements are;

1.   The minimum age requirement is fourteen years old
2.   You must be of sound mind
3.   Only a written will is accepted
4.   Wills must be freely and willingly formed
5.   Two witnesses must sign the will in your presence.

Please refer to our article “Will Writing Service in Georgia” for more information.

How to write a will in Tennessee

To make a will in Tennessee, you need to:

1.   Ensure that you are at least 18 years old
2.   Be of sound mind
3.   Affix your signature to your will or instruct someone else to sign on your behalf while you are present
4.   Have two witnesses attend when the testator affixes their signature to the will.
5.   Have the will in writing

Please refer to our article “Will Writing Service in Tennessee” for more information.