How to make a will: A complete guide

What is a will and what does it contain?

A will, also known as a “last will and testament,” is a legal document that allows you to specify how your assets should be distributed after your death, name an executor for your estate, nominate guardians for any minors or dependents, and make your funeral wishes known.

Here’s a short description of what an official will should contain:

• Your identifying information: You (the “testator” of the will) are required to include your full legal name and, where useful, former and alternate names that help identify you clearly. Your address and state of residence are also recommended for the same reason. If your name is a common one, additional identifying information may help avoid confusion, but avoid including unnecessary sensitive data.
  
• Executor and backup executor information: The executor is the person you select to manage, or “execute,” your estate after you’re gone. They handle paperwork, help settle outstanding debts and expenses, and distribute your assets to named beneficiaries. You should also consider naming a backup, or successor, executor in case your first choice dies, becomes incapacitated, declines the role, or is otherwise unable to serve.
  
• A list of specific gifts and beneficiaries: If there are specific assets you wish to leave to particular people or organizations, clearly identify both the asset and the beneficiary (the person who will receive, or “benefit” from, the gift). Descriptions should be precise enough for your executor to easily identify and access the intended asset.
  
• A residuary clause: A residuary clause specifies who should receive the “residue” of your estate — essentially, property remaining after specific gifts, debts, expenses, taxes, and other obligations have been dealt with. It helps prevent assets that weren’t individually addressed in your will from being unintentionally omitted.
  
• Named guardians for minor children and dependants: You can nominate a guardian and backup guardian for minor children under 18 or other dependants where applicable. While a court makes the final appointment, your nomination can help make the process faster and less stressful for any minors involved. You can also name a testamentary trustee to manage assets left to a minor according to your will.
  
• Instructions for debts, expenses, and digital assets: Your will should include instructions for handling debts, taxes, funeral costs, administrative expenses, and certain digital assets. Don’t include passwords, private keys, or other login credentials in the will. Store them separately in a secure location and provide appropriate instructions for authorized access.
  
• Legal signatures: Your will needs to be signed according to your state’s requirements, which commonly include two witnesses. Ideally, the witnesses should not be beneficiaries, as in some states this can complicate or invalidate the gifting process. Depending on state law, a notarized self-proving affidavit may also simplify authentication of the will during probate.

What is the best way to make a will?

Generally, the best way to create a will that complies with your state’s requirements and reflects your circumstances is to work with an attorney. There are also online services that can help you create a will if your estate isn’t too complex and you prepare everything you need in advance. It’s even possible to do it yourself, though most experts advise against doing so.

The best way for you to make a will ultimately depends on the complexity of your estate, assets, and family situation, as well as your overall budget. More complex estates or family circumstances may benefit from professional legal advice, while simpler estates may be suitable for a reputable online will service.

Here’s a detailed look at the most common ways of making a will:

With an attorney

• Pros: You get tailored legal advice, help complying with state requirements, and professional guidance that can reduce the risk of errors or disputes after you pass.
• Cons: It costs more. According to the National Council on Aging (NCOA), preparing a full estate plan with an attorney can cost around $2,000 to $5,000 depending on location, complexity, and the attorney’s fee structure. Attorney fees for administering an estate during probate are separate and can amount to as much as 3% of the value of the estate.
• Best for: People with complex estates or businesses, blended families, children from previous relationships, beneficiaries with special needs, or family circumstances that could increase the risk of disputes.

Using an online will service

• Pros: It’s a quicker and more affordable way to create a legally valid will than using an attorney. Reputable online will services guide you through the process of putting together a will, and may make it easier to update your will if your situation changes. 
• Cons: You won’t get the same level of personalized legal advice that an estate attorney can provide.
• Best for: People with relatively simple estates and straightforward distribution wishes, although the features and level of complexity supported vary by service.

DIY wills

• Pros: It’s the lowest-cost option.
• Cons: You won’t get any legal oversight, and there’s a greater risk of errors that could invalidate the will or complicate the probate and estate administration process.
• Best for: People who can’t afford another option, or with very simple estates who are confident they understand and can meet their state’s legal requirements. Even then, we recommend using professional or reputable online assistance to reduce the risk of mistakes.

Can I make a will without a lawyer?

Yes, you can use an online will service to make a will without a lawyer, or even create one yourself. An online will service is safer than creating a will entirely on your own, and can guide you through the process and help you create a will that meets your state’s requirements. DIY wills, on the other hand, remove the guardrails and introduce a higher risk of errors.

You can also make a holographic will, which is a handwritten will drafted and signed by the testator, often with no witnesses. However, the validity of holographic wills varies widely by jurisdiction. Because improperly prepared holographic wills can create uncertainty or lead to disputes, they are generally discouraged. If you do decide to pursue this option, check your state’s requirements or seek legal advice first.

Step-by-step guide to making a will

Here are the basic requirements for making a will:

• You must be over 18 years of age and of sound mind.
• The will must be in writing.
• The will usually must be signed and dated in front of two witnesses, who cannot be named as beneficiaries in the will. However, the number of witnesses depends on the jurisdiction where you’re creating the will.

1. Decide whether you need a will and a trust

Wills are an essential feature of any estate plan, specifically designed to handle the transfer of assets such as property, cash, and other financial assets, and nominate guardians for dependents and pets. If your estate includes bank accounts, a house, car(s), and some investments, a will may be sufficient.

If your estate is particularly large or complex, includes real estate in multiple jurisdictions, high-value personal property, or business interests, it may also be worth considering whether to set up a trust, such as a revocable living trust. Trusts may also be useful if you want to plan for potential incapacity or manage complex family dynamics, but you’ll need to take it into account in your will.

Trusts have the added advantage of providing greater privacy because assets properly transferred to certain trusts can generally avoid probate — the court-supervised process of administering an estate after death. Avoiding probate may reduce delays and administrative costs for beneficiaries, although trust assets are not necessarily available immediately after death.

Following an estate planning checklist can help you decide whether you need a trust in addition to your will, and guide you through the process in a way that helps keep your sensitive information safe and secure.

2. Choose a method of making a will

The first step towards creating a will is to choose which will-creation method works best for your circumstances: working with an estate planning attorney, using an online will service, or creating the will yourself.

Whatever method you choose, take steps to protect the personal and financial information involved. Research trusted estate planning attorneys before entrusting someone with sensitive information. And if you go the online will service route, learn how to identify a fake site to help ensure you’re using a legitimate provider. Check resources such as the Better Business Bureau for ratings, complaints, and other information before you trust a service with your will.

3. List the assets you want to give away

To start making your will, first create an estate inventory — a list of your property and financial assets. While not every asset will necessarily be specifically stated in your will, creating a list helps you identify the appropriate beneficiaries and provide important instructions for key gifts.

Here are the main asset types to list, including some examples:

• Property and real estate: Houses, apartments, and commercial property.
• Vehicles: Cars, vans, motorcycles, boats, and RVs.
• Bank accounts: All current financial accounts, savings accounts, credit union accounts.
• Investments: Stocks, shares, bonds, mutual funds, IRAs, and 529 plans.
• Debts: Mortgages, loans, credit card balances, and any other outstanding liabilities.
• Money owed: Money owed to you by family members or friends, unpaid invoices from self-employment or business activities, and tax refunds due.
• Pensions: 401(k)s, private or workplace pensions, and other retirement accounts.
• Life insurance: Term life, whole life, and universal life policies. Ownership and beneficiary arrangements determine how life insurance proceeds are handled, so note any policies owned by a trust or another person.
• Valuable belongings: Jewelry, art, antiques, collectibles, and other high-value items.
• Personal possessions: Furniture, electronics, clothing, household goods, and other everyday items.
• Business interests: Ownership stakes in businesses, including the value of your share.
• Digital assets: Cryptocurrency, domain names, social media accounts, digital photos and documents, and other online intellectual property (such as blogs or websites).

4. Select your beneficiaries

Your beneficiaries are the people or organizations named in your will that you want to inherit your assets when you pass away.

There are three types of beneficiaries:

• Primary beneficiaries: The people or organizations you wish to inherit an asset.
• Secondary beneficiaries: The people or organizations who will inherit an asset if the primary beneficiary predeceases you or is unable to receive the gift.
• Residuary beneficiary: The individual or organization who will receive the remainder of your estate after specific gifts, debts, expenses, and other distributions have been handled.

For each asset specifically listed in your will, you should name both primary and secondary (or contingent) beneficiaries. Without secondary beneficiaries, a gift may pass according to other provisions in your will or, in some circumstances, applicable state law if the primary beneficiary cannot receive it.

When selecting your beneficiaries for specific assets, take extra care when leaving property to a minor, who generally cannot manage inherited assets independently. Courts may need to appoint a conservator to handle the property until the child reaches adulthood. Instead, consider placing assets you wish to leave to minors in a testamentary trust and naming a trustee to manage the property according to the terms you specify.

It’s also important to plan carefully for a beneficiary with a disability who receives means-tested benefits, because inheriting assets directly may affect eligibility for benefits such as Supplemental Security Income (SSI) and Medicaid. Discuss the matter with an estate-planning attorney and consider whether a special needs trust, ABLE account, or another planning option is appropriate.

5. Choose your executor

The executor of your will is the person responsible for carrying out its instructions after you pass away. Their main job is to administer the estate through probate, which may include identifying and safeguarding assets, paying valid debts and taxes, maintaining records, and distributing property according to the will. Depending on the state, this role may instead be called a “personal representative.”

Choose someone you trust who meets your state’s eligibility requirements. An executor should ideally have good financial and organizational skills and enough time to handle the role. Because estate administration can involve competing interests and difficult decisions, patience, fairness, and good communication skills are also valuable.

Many people choose a spouse, adult child, other relative, or trusted friend. You can also appoint a professional, such as an attorney, accountant, bank, or trust company, although professional executors typically charge for their services.

You may be able to appoint two or more co-executors, but consider whether sharing the role will make administration easier or more complicated. Co-executors may need to coordinate decisions and signatures, which can create delays if they disagree or live far apart. It’s also wise to name at least one alternate executor in case your first choice dies, declines to serve, becomes incapacitated, or is otherwise unable to act.

Can an executor of a will also be a beneficiary?

Yes, it’s both legal and common for an executor to also be a beneficiary of the will. For example, a surviving spouse, adult child, or other close family member may be appointed executor while also inheriting part or all of the estate.

The main consideration is the potential for conflicts of interest. An executor has a fiduciary duty to administer the estate according to the will and applicable law and must not favor their own interests. When choosing an executor who is also a beneficiary, consider whether they can act impartially, handle disagreements fairly, and carry out their duties without allowing their personal interests to influence estate decisions.

6. Nominate guardians for your children and dependents

If you have minor children or dependents who may require a guardian, nominate legal guardians (both a guardian and a contingent guardian) in your will. In the absence of a named guardian, the probate court will appoint one if necessary. Ultimately, guardianship is decided by the court, but explicitly naming trusted guardians in your will provides clear evidence of your wishes.

Always speak to your chosen guardians before naming them to ensure they are willing and able to take on the responsibility.

If the other parent is alive and has parental rights, they will generally continue to have parental rights and may assume sole custody, subject to applicable law and the child’s best interests. If no parent is available to care for the child, the court will consider your nomination along with the child’s best interests and other relevant factors.

Not naming a legal guardian can create uncertainty about who you would want to care for your children. It may also increase the likelihood of family disagreements or a longer court process while a suitable guardian is determined.

7. Include any charitable donations you wish to make

Many people choose to leave a charitable donation in their will. This is also known as a charitable bequest or a charitable legacy.

If you want to include a charitable gift, clearly identify the organization and describe what you want it to receive. An estate-planning attorney or reputable will service can help ensure the wording is appropriate, and the intended charity is correctly identified.

There are multiple options for leaving a legacy or bequest, including:

• Fixed sum legacy: Leaving a specific amount (e.g., “$10,000 to Dolly Parton’s Imagination Library”).
• Percentage legacy: Leaving a percentage of your estate (e.g., “5% of my estate to Feeding America”).
• Residual legacy: Leaving all or part of your residuary estate to charity after specific gifts, debts, expenses, and other distributions have been handled.

Estate tax charitable deduction

Making a charitable donation in your will can provide tax benefits, including reducing the value of your estate that may be subject to federal estate tax.

In the U.S., qualifying charitable bequests are generally deductible from the value of the estate for federal estate tax purposes, and charities generally do not pay income tax on those distributions. In contrast, tax-deferred retirement accounts, such as traditional IRAs and 401(k)s, can create income-tax obligations for individual beneficiaries when they take distributions

One potentially tax-efficient option is to name a qualified charity as the beneficiary of some or all of a tax-deferred retirement account. This may allow the charity to receive those assets without the income-tax burden that could apply to an individual beneficiary, while other assets can be left to family or other beneficiaries.

8. Sign your will in front of witnesses

To be legally valid in many states, you must sign your will in front of the number of witnesses required by state law, commonly two. Usually, both witnesses must be present at the same time, but signing and witnessing requirements vary by state, so make sure you follow the rules where the will is executed.

A beneficiary of the will should not be a witness. In some states, a beneficiary may lose some or all of their inheritance if they serve as a witness. Using disinterested witnesses can help avoid potential complications.

Notarization — the process of having the identity, willingness, and awareness of the signatories verified by a state-commissioned notary — is generally not required to make a traditional will valid, although state requirements vary.

Some states allow a self-proving affidavit, which is a separate notarized statement confirming that the will was signed properly and voluntarily. This can simplify probate by providing evidence that the will was properly executed, potentially avoiding the need for witnesses to testify later.

9. Inform your people of the will’s existence

While no one has a legal right to see your will before you die, it’s vital that you inform your executor about its existence and how to access it, and you should consider doing the same for any guardian you named for your dependents.

Most people don’t share copies of their will with beneficiaries during their lifetime. However, it may be a good idea to strategically inform beneficiaries of your wishes to help prevent surprises or disputes during probate.

Some people choose to prepare a letter of instruction, which is a separate, non-legal document that might explain your reasoning, where your assets are, how to access them, and your contacts, such as your attorney, accountant, or financial advisor. Because a letter of instruction is generally not legally binding, avoid using it to change or contradict the terms of your will. An estate-planning attorney can advise whether and how the two documents should reference each other.

Don’t include sensitive account credentials, such as passwords for financial, email, or social media accounts, directly in your will or letter of instruction. Instead, keep credentials in a separate, secure location and provide your executor with instructions for finding and accessing them when authorized to do so.

10. Store your will safely

You must store your will in a safe place, as losing track of it or leaving it in an insecure place can put your sensitive personal data, and that of your loved ones, at risk of tampering, theft, or misuse. It could even lead to identity theft in extreme cases.

A common and secure place to store your will is at your estate attorney’s office. If you use an online will service or a DIY will kit, consider keeping the original in a secure, fire- and water-resistant location at home. Avoid storing your will in a safe deposit box at a bank, as banks generally seal the box upon notification of your death and require a court order to open it.

If your will is stored at home, tell your executor where it is and make sure they’ll be able to access it when necessary. Digital-only copies may not satisfy probate requirements in every jurisdiction, so keep the original signed document where required. However, you can create a digital backup and securely store it online using strong security, such as encryption and multi-factor authentication. Tell your executor where the backup is stored, but avoid putting passwords directly in your will or letter of instruction.

If the original, physical, signed copy of the will is inaccessible, lost, or damaged, probating the will may become more complicated. Depending on state law and the available evidence, a copy may sometimes be accepted; in other cases, some or all of your estate could be distributed under intestacy laws.

For this reason, do not staple or paperclip your will, as this can lead to rust or damage over time, and do not store it in a completely hidden place, such as beneath floorboards or inside a wall.

What is the biggest mistake with wills?

Some of the biggest mistakes people make with wills are not making one at all, failing to follow your state’s signing and witnessing requirements, and storing the original somewhere it can’t be found or accessed.

Without a valid will, some or all of your estate may be distributed according to state law. This is known as dying “intestate”. Intestacy rules vary by jurisdiction, but most commonly dictate that, in the absence of a will, the estate passes to a surviving spouse and children. This can become particularly complicated if there are unmarried partners, children from multiple relationships, or no surviving spouse or children.

If you die without a will, the court appoints a personal representative to administer your estate and, where necessary, decide who should serve as guardian for minor children. In these cases, estate administration may also become more complicated and increase the potential for family disagreements, delays, and additional costs.

Secure your family’s future the hassle-free way

Creating a will is just one way to plan for your family’s future. Another way is to keep your family’s sensitive personal information safer in the face of fraud and identity theft. Sign up for our LifeLock mailing list today to get more practical guidance on estate planning and identity protection strategies to help defend your family's finances, identities, and personal info.