10 Basic Facts About Writing a Will

3. An attorney — or not

No, you don’t need an attorney, provided your will meets the legal requirements of your state. You can write it on paper or on your computer. Just make sure to let your executor and other family members know where to find it, should you become incapacitated or die.

“A legal will is done by a person over the age of 18 with sufficient mental capacity,” Fresard says. “Signing the will in front of two witnesses, and signing within a reasonable time, makes the will legal.” 

Though you don’t need an attorney, one may help you avoid common mistakes, he adds. Also, a lawyer may be able to provide useful advice on the other documents you need, such as durable power of attorney, a living will (also known as a health care directive) and, perhaps, a living trust.

If you prefer to do it yourself, take advantage of online will services, estate planning software and bookstores and libraries with guides on the subject. Low-cost resources for estate planning are available from your city or state departments of aging and from AARP Foundation.

4. Separate wills: yours, mine and ours

Should you and your spouse have a joint will? Estate planners almost universally advise against it, and some states don’t recognize them. Your spouse isn’t likely to die at the same time, and you may have property that’s not jointly held. Separate wills make sense, even if they look similar.

Separate wills also give you the chance to consider ex-spouses and children, pets and property from a previous relationship. Otherwise, probate laws will likely favor your current spouse.

5. Choosing your witnesses

Any person can act as a witness to your will, as long as they’re “disinterested.” In other words, the person who witnesses your will should get no benefit from it.

Do you need to have your will notarized? In some states, yes. You may also want to have your witnesses sign a “self-proving affidavit,” usually in the presence of a notary. This affidavit can speed up the probate process because your witnesses likely won’t be called into court by a judge to validate their signatures and the authenticity of the will.

6. Naming an executor — or two

You can name your spouse, an adult child or a trusted friend or relative as your executor — perhaps individuals who are younger than you and in good health. If your affairs are complicated, an attorney or someone with legal or financial expertise is a better choice. Make sure that your will empowers your executor to pay your bills and deal with debt collectors. 

As you write your will, word it so it gives your executor the ability to attend to other issues related to your estate as they arise.

It’s a good idea to name two executors, in case something happens to one of them. Like your beneficiaries, you should periodically review whom you’ve chosen.

7. Leaving specific stuff to specific heirs

How do you make sure that certain heirs receive certain property? Spell that out clearly. You can create a separate “letter of instruction” that is filed with your will.

This letter, which isn’t legally binding in some states, can be written more informally than a will and can go into detail about which items go to whom. You can include important details, such as your funeral and burial instructions.

8. Keeping your will safe — and accessible

Before a probate will process your estate, it’s likely to require the presentation of your original will. So it’s important to keep this document safe, yet accessible. If you put your will in a bank safe deposit box that only you can access, your family might need to obtain a court order to retrieve it. A waterproof and fireproof safe in your house, or an online “document vault” are good alternatives. Just make sure that your executor or other relatives have the required account numbers and passwords. The same is true for all of your digital accounts.​​Your attorney or someone you trust should keep signed copies in case the original will is destroyed. Signed copies can be used to establish your intentions. The absence of an original will can complicate matters, and without it, there’s no guarantee that your estate will be settled as you wish.

9. When to update it

Get in the habit of reviewing your will every two or three years, or when a major life change has occurred — marriage, divorce, birth of a child, death of a beneficiary or executor, a significant purchase or inheritance. Also, once your minor children become adults, they won’t need guardians, unless they’re disabled.

10. Making a bulletproof will

Finally, a will can be contested — its legal validity challenged — for a number of reasons: It wasn’t properly witnessed; you weren't competent when you signed it; or it’s the result of coercion or fraud. 

A beneficiary who feels slighted by the terms of your will might choose to contest it. Depending on the state you live in, so too might a spouse, ex-spouse or child who argues your stated wishes go against probate laws. It’s usually up to a probate judge to settle any disputes. Your best defense is a clearly drafted and validly executed will.

“If you have your assets controlled by a trust, you can avoid probate entirely, and this will further protect your will from challenges,” Fresard says.