Will

A will is a legal document in which a person, the testator, states who is to receive their property after death and who is to administer the estate. Cornell's Legal Information Institute defines it as "a legal document that states a testator's wishes and instructions for managing and distributing their estate after death." The formal caption "last will and testament" means the same thing. State probate codes use the bare word as the operative legal term, and define it broadly enough to include amendments: California Probate Code section 88, for example, provides that "'Will' includes codicil and any testamentary instrument which merely appoints an executor or revokes or revises another will." The doubled phrase survives from an older vocabulary in which a testament dealt specifically with personal property, a distinction that has since collapsed; Merriam-Webster's law dictionary notes that a will now covers both personal and real property and that the two words are treated as synonyms.

The practical shape of a will is easiest to see from the property side. Most household wealth leaves an estate through channels the will never touches. A retirement account or life insurance policy pays whoever is named on its beneficiary designation. Property held jointly with a right of survivorship passes to the surviving owner by operation of the title. Assets retitled into a funded revocable living trust pass under the trust's terms. The will governs what is left after those channels have run, which in many estates is a brokerage account in one name, a car, and personal belongings. That does not make the document optional. The will is the only instrument that names an executor, nominates a guardian for minor children, can create a testamentary trust, and catches anything with no other destination, including a share whose named beneficiary has died first.

Wills are creatures of state law, so there is no single national rulebook and no federal agency that issues the requirements. Cornell notes that a valid will must comply with the law of the place where it is executed or where the testator is domiciled. The near-universal core is a written document signed by the testator, who must be an adult of sound mind. Beyond that, states differ on the details that decide whether a document works: how many witnesses must sign and whether they must be present together, whether a notary can stand in for the witnesses, whether an entirely handwritten and unwitnessed holographic will is recognised, and how much protection a state's version of the harmless-error doctrine gives a defectively executed document. California, to take one state, requires a signed writing witnessed by at least two people present at the same time, and separately recognises a holographic will if the signature and material provisions are in the testator's own handwriting. A different state can reach a different answer on the same piece of paper.

Notarisation deserves separating out, because it is the formality people are most likely to believe is required. In most states it is not what makes a will valid. California's execution statute does not mention a notary at all, and the Uniform Probate Code treats acknowledgment before a notary as an alternative to signing by two witnesses rather than an addition to it. Where a notary does appear, the usual job is to make the will self-proving. The testator and the witnesses swear to the execution at the time of signing, so the document can be admitted later without locating those witnesses and asking them to recall the signing years afterwards. Under the Uniform Probate Code a self-proved will satisfies the execution requirements without the testimony of any attesting witness, while a witnessed will that is not self-proved ordinarily needs at least one of them to testify. That is a real saving of time in probate, and it is a different question from whether the will is valid.

A will is revocable for as long as the testator has capacity, and it is ordinarily changed either by a codicil or by signing a new will that revokes the old one. Because nothing takes effect until death, the version that governs is whichever one was validly in force at that moment, which is why an old will naming an ex-spouse or a deceased guardian is a live problem rather than a historical one. Validity is also contestable: probate courts test testamentary capacity and whether the document was the product of fraud, duress, or undue influence.

A will is drafted, signed, and witnessed according to the law of the testator's state, then kept somewhere the executor can find it. Nothing happens next, possibly for decades. At death, the executor named in the document files it with the probate court, which determines whether it is valid. Once admitted, the executor inventories the estate, pays debts, expenses, and taxes, and distributes what remains to the people the will names. If no executor was named, or the named one cannot serve, the court appoints someone.

A hypothetical example of how little often passes under the document. Renée dies owning a $520,000 401(k) with her daughter named as beneficiary, a $250,000 term life policy naming the same daughter, a house worth $180,000 held jointly with her sister with a right of survivorship, a $60,000 joint checking account, and a $45,000 brokerage account in her name alone plus a car and household belongings. Her estate is roughly $1,055,000, and the will controls the $45,000 account, the car, and the belongings: about 4% of the total. The other 96% moves on the beneficiary forms and the titling, whatever the will says. Yet the will is still doing three jobs nothing else does. It names who administers the estate, it nominates a guardian if her children were minors, and if her daughter had died before her, it decides where the accounts go once the beneficiary forms come up empty.

Pros

• It is the only document that names an executor, nominates a guardian for minor children, and directs whatever has no other route out of the estate.
• Dying without one hands the distribution to a state intestacy statute written for the average case rather than yours.
• It can be revised or revoked at any time while you have capacity, at relatively low cost.
• It can create a trust at death, which is how many parents provide for children who are too young to receive money outright.

Cons

• It does not avoid probate. A will is proved in court, which takes time, costs money, and generally becomes public record.
• It has no effect until death, so it does nothing about incapacity, the risk that arrives first for most people.
• It is silent over the assets that hold most of the money, because beneficiary designations and survivorship title override it.
• Validity depends on state formalities, so a document that is valid where it was signed may be attacked after a move, and a defectively executed will can fail entirely.
• It can be contested on capacity or undue-influence grounds, sometimes years after it was signed.