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Last Will and Testament

Learn more about Last Will and Testament

A Last Will and Testament allows you to control what happens to your estate (your money, property, and other assets) after your death. In a will, you can define assets, name beneficiaries, assign guardians for your minor children, and appoint an executor to carry out your wishes. If you die without a valid will, the fate of your estate is put into the hands of the probate court.

Once you make your will, you can make it legal by signing it with your witnesses. State laws vary with respect to how many witnesses are required, whether oral wills are considered valid, and other such details.

You will have more success making your Last Will and Testament if you consider the following questions beforehand:

  • What assets will you include?
  • Do you have any debt?
  • Who will be your beneficiaries?
  • Who will be your executor?
  • If you have minor children, who will be their guardian?

If you have questions before getting started, ask a lawyer.

On average, you will pay an estate planning lawyer anywhere between $250 and $350 per hour (depending on the state), while some lawyers charge a flat fee averaging about $1,000. With Rocket Lawyer, you can make a will for free.

You can access your will anytime, anywhere, on any device. As a Rocket Lawyer Premium member, you can download it in PDF or Word format and print it anytime. You can also use your Rocket Lawyer membership to have your will reviewed by an On Call attorney.

Both a Last Will and Testament and a Living Trust possess advantages and disadvantages, although the one you choose will depend on your goals and where you are in your life. To determine whether to use a will or a trust, you must understand the key differences between these two estate planning devices.

A will:

  • Does not take effect until you die
  • Covers any property that is only in your name when you die
  • Allows you to name a guardian for children and to specify funeral arrangements
  • Passes through probate
  • Is public record and any transactions are also public record

A trust:

  • Takes effect once created—if you fall ill or become incapacitated your trustee can control your estate
  • Only covers property that has been transferred into the trust
  • Passes outside of probate, saving time and costs of probate
  • Can be used to plan for disability or to provide savings on taxes
  • Has an added benefit of privacy, as trusts are not public record

Generally, neither one is "better" than the other. It simply depends on your specific preferences and circumstances. You can also make both to accommodate separate needs.

A will can be considered invalid by your state for a number of reasons, including (but not limited to) the following:

Mental incompetence

Most states typically require that the person making the will is mentally competent during the time of creation. The competency standard can be met in many states if you possess an understanding of the following:

  • The property you own
  • Who your relatives are
  • What the will says and means
  • Your relationship with the beneficiaries you have designated

In other states, there is additional guidance around mental illness. For example, in California, an individual with hallucinations or delusions resulting from a mental illness may not be considered to have the capacity to make a valid will, if their decision-making with regard to the will and the distribution of their property is impacted. If you have questions about making a legally valid will, talk to a lawyer.

Previous wills

To avoid confusion and ensure that the most recent will is followed, it is important to destroy every copy of any previous, outdated will. That said, it is possible to have multiple valid wills for dealing with property in multiple states, if one will is a supplement to another, or for other limited reasons.

Improper witnesses

Many states require that a will be witnessed by at least two people over the age of 18. Witnesses will observe the signing of the will and confirm mental competence at the time of the signing.

If you need more guidance before getting started on your Last Will and Testament, ask a lawyer or check out more estate planning documents.