Skip to main content

The basics of wills: Ensuring your wishes are carried out

A last will and testament is an essential estate planning tool

When you pass away, you leave many material things behind — “you can’t take it with you,” as the saying goes. That can include assets like real estate, cash, vehicles, jewelry and other valuables — and things of sentimental value, too.

Most people want to make sure their earthly possessions are passed along to loved ones. But unless you clearly communicate your wishes in legally binding estate planning documents like a last will and testament, your plans may not be carried out as you wanted.

Unfortunately, that includes a lot of Americans — just a little more than 30 percent of American adults have a will or some sort of an estate-planning document.1

While some 60 percent of survey respondents say they think estate planning is a very good thing,1 that sentiment doesn’t always turn into action — and many people don’t take the steps they need to, leaving their loved ones to play a guessing game.

Families feel a devastating loss when a loved one dies — it’s unavoidable. What you can avoid, however, is undue stress and tension among family members when your wishes haven’t been clearly documented.

So why don’t people follow through and create a will? There could be a number of reasons:

  • It’s not fun to think about our own demise
  • Planning a will is seen as a complicated and expensive process, and people are afraid to start
  • There’s a perception that unless you are extremely wealthy and have a lot of assets, a will isn’t necessary
  • It’s easy to put off and tell yourself you’ll do it later

Creating a will doesn’t have to be complicated, expensive or time-consuming. Read on to learn the basics of planning a will and why it’s important to have one.

What is a last will and testament?

In its most basic form, a last will and testament is a legal document in which you express your wishes as to how your property will be distributed after your death.

A will lets you control what happens to your property and affairs. It covers who is responsible for distributing your assets to your beneficiaries,2 and allows you to name guardians for your children/dependents if they are minors at the time of your passing.

What is governed by a last will and testament?

A last will and testament governs assets that are in your name alone (such as a car, a home, a checking account).

What is not governed by a will?

Jointly owned assets that are co-titled with someone else like a spouse or partner, or owned within a trust, are not governed by your will.

Neither are assets with a separate beneficiary designation (think retirement accounts, life insurance policies). The person or entity you named as the beneficiary will receive those assets.

Finally, a last will and testament does not take effect until you’re deceased, and is separate from a health care directive, sometimes referred to as a “living will,” which focuses on your medical treatment while you’re still alive.

Guardianship and financial support of your children

If you have children under 18, you can also plan for their future in your will.

That includes naming legal guardians for them in your will if you were to pass away before they turn 18 and become adults.

You can also set up financial support for family members who will need some extra help after you’re gone. Making sure that you have a plan in place to financially care for your children with special needs — whether they be medical, physical, or occupational — will help them maintain their independence.

Why create a will?

If you’re like most people, you want the people you love and organizations you care about to receive your assets when you die. A will is an important instrument in ensuring that happens.

A will can also bring clarity to a chaotic time, communicating your wishes of you’d like your assets to be distributed after you aren’t around to see it through, mitigating the stress families feel when there isn’t a clear plan in place.

Wills and probate

A will requires your estate go through probate court — the legal process of settling your estate and redistributing your property. But the clear direction provided by a will can save your family thousands of dollars in probate fees.3

What happens if you don’t have a will?

You won’t be around to see it, but not having a will can make things very complicated. This is called dying “intestate” — meaning you do not have a will directing distribution of your assets that are titled in your name alone.

When this happens, a local probate court will distribute your property based on what an average person’s final wishes might be.4 However, that might not turn out how you would’ve wanted.

Let’s say you die without a will and you’re married and have children. Most likely, the law will dictate that the distribution of your assets go to your spouse and your heirs, respectively.

However, what if you’re not married and you don’t have children? There’s an order of succession of who will receive your property, which typically goes in this order:

  1. Parents, if living
  2. Siblings, if living
  3. Then, to extended family members

Would you rather have your cousin — instead of your siblings — acquire your property? Or what about a charity or organization dear to you? Then put it in writing by creating a will.4

How to create a will

There’s no time like the present to get started. Here’s what you need to do.

1. Assess your assets

What things of value do you own that can be sold for money?5 A car? A house? Investments? A rare coin collection?

Take time to catalog the assets you have, how they are owned, and to whom you would like them to go to someday.

2. Determine your goals and needs

After you’ve assessed the nature of your assets, spend time considering your goals and desires for those assets after you pass.

Who do you want to receive your assets? Family only? Charity? Both? And for what use? Education, starting a business, a wedding?

You might think, “This is an easy decision! I want to leave everything to my spouse and children.” However, you could have a child that you’re concerned would not make wise choices with their inheritance.

If that’s the case, you might consider adding more advanced directions within your will, such as creating a trust for your child. It’s also important that you have a conversation with your spouse and family members regarding your goals and desires.

Think about the legacy you want to leave, to both your family and your larger community.

3. Meet with your financial team

Once you have an idea of your goals for your assets, meet with your financial professional and walk them through what you’re thinking so they can help you implement a plan. They may also be a good resource in helping you assess your assets (see step one).

4. Create the documents

Estate planning can become complicated — so it’s typically best to hire an attorney to draft your last will and testament, and other estate planning documents.

A friend or family member might recommend one, or your financial professional may have local recommendations, too. You can also find a good estate planning attorney through the American College of Trust and Estate Counsel,6 National Academy of Elder Law Lawyers, and National Association of Estate Planners & Councils.3

Ask your attorney what you should bring to your first meeting, such as a list of your assets (and liabilities) and names of potential beneficiaries — as well as important documents such as property valuations. Being organized might shorten your session, helping to keep costs down.1

For simple estate planning, a DIY option may work for you. If you choose to do it yourself, be sure to get it reviewed by an attorney in your state, as each state has different laws.

Once your will is in place, you’ll be able to breathe a sigh of relief that it’s done. You might even wonder why you didn’t finish it years ago.

Like what you’re reading?

Email

Get articles like this delivered directly to your inbox. 

Sign up

End of life planning resources

End-of-life planning decisions can be difficult to think about and discuss with loved ones. We've prepared information to help guide you through the process — from wills, directives and final arrangements to resources for coping with the death of a loved one.

View all articles

Documents

Location of Important Documents (pdf, 05/01/2020)
Always follow your attorney's directions on storing documents.

1. Amend, Patricia. “6 common mistakes people make when writing a will.” AARP. Published December 3, 2020.

2. Kerr, Emma. “Questions to ask before writing a living will.” U.S. News & World Report. Published June 15, 2021.

3. Mahoney, Sarah and Sheila Anne Feeney. “How to stop stalling on getting a will and estate plan.” AARP. Published November 12, 2020.

4. “What happens if you die without a will?” FreeWill Co. Updated July 20, 2020.

5. Napoletano, E. and Benjamin Curry. “What are assets?” Forbes. Updated March 10, 2021.

6. Lankford, Kimberly. “8 things you need for an estate plan at any age.” U.S. News & World Report. Published September 2, 2020.

This information should not be considered legal advice. Financial professionals do not provide legal advice. Consult a licensed attorney regarding your situation.

DOFU 10-2021
1857527