A last will and testament includes an executor to manage your estate, beneficiaries who receive your property, instructions for what each person gets, a guardian nomination for any minor children, provisions for paying debts and taxes, and a valid signature witnessed under your state’s rules. Those are the pieces every will needs. What is included in a last will and testament beyond that depends on your situation: pet care, digital accounts, charitable gifts, and a clause discouraging challenges are all common additions. Get the core elements wrong and your estate can stall in probate for months, so each piece is worth understanding before you sign.
Who Can Make a Will
Most states require you to be at least 18 and mentally capable of understanding three things: what you own, who your close family members are, and what the will does with your assets. You don’t need perfect health. You do need to grasp what you’re signing. Severe cognitive impairment at the moment of signing gives challengers an opening to invalidate the whole document.
The People Your Will Names
Every will revolves around a few roles. Identify each person with their full legal name and relationship to you.
The executor is the person or institution responsible for managing your estate after you die. They collect assets, pay debts, file tax returns, and distribute what’s left. Beneficiaries are the individuals, charities, or organizations receiving your property. You can name as many as you want and assign each one specific items, dollar amounts, or percentage shares. Guardians are the people you want raising your children if they’re under 18 when you die. The will is the primary place to express that preference.
Name at least one alternate for each role. Executors decline, guardians move away, beneficiaries sometimes die before the person who wrote the will. If your first choice can’t serve and you haven’t named a backup, the court picks someone.
How Your Property Gets Distributed
You have two basic tools for telling people who gets what. A specific bequest ties a named item to a named person: your grandmother’s ring to your daughter, your truck to your brother, $10,000 to a local charity. A general bequest directs money from the estate’s overall pool without tying it to a particular asset, as in “15 percent of my estate to my nephew.”
The provision that catches everything else is called a residuary clause, and skipping it is one of the most common mistakes people make. A residuary clause covers any property you didn’t specifically mention: assets you forgot about, property you acquired after writing the will, or items where the original beneficiary died before you did. Without one, those leftover assets pass under your state’s default inheritance rules, which may not match your wishes. A single sentence naming a person or charity to receive “the rest and remainder of my estate” solves the problem.
Use plain, specific language throughout. “My house at 42 Elm Street” works better than “my real property.” Vague descriptions invite arguments between beneficiaries and can stall probate for months.
Assets a Will Doesn’t Control
Several categories of property bypass your will entirely, no matter what the document says. They transfer to whoever is named on the account or title, and an outdated designation can’t be fixed by the will.
- Life insurance policies pay the death benefit to the beneficiary listed on the policy.
- Retirement accounts like 401(k)s and IRAs pass to the beneficiary on file with the plan administrator.
- Payable-on-death bank accounts and transfer-on-death brokerage accounts go to the named person.
- Jointly owned property with right of survivorship goes to the surviving owner automatically.
- Assets held in a trust are governed by the trust document, not the will.
Review your beneficiary designations as often as you review your will. A will that says “everything to my spouse” doesn’t override a 401(k) form that still lists an ex-spouse from a previous marriage. The beneficiary form wins every time.
Guardians for Minor Children
If both parents die or become unable to care for their children, the guardian named in the will is the starting point for the court’s decision. You’re not binding the court, since a judge will always evaluate the child’s best interests, but a clear nomination carries significant weight. Courts rarely override a parent’s stated preference without a compelling reason.
Think carefully, because the role covers day-to-day care and financial oversight. Some parents split these jobs, naming one person as the physical guardian and another person or a trust to manage the child’s inheritance. That setup makes sense when your most nurturing relative isn’t the most financially experienced. Name at least one alternate guardian in case your first choice can’t serve when the time comes.
The Executor’s Job, Debts, and Taxes
The executor’s work is bigger than most people expect. The IRS describes the personal representative’s core duties as collecting the deceased person’s assets, paying creditors, and distributing the remaining assets to beneficiaries.1Internal Revenue Service. Publication 559 – Survivors, Executors, and Administrators In practice that means months of paperwork: inventorying bank accounts and property, notifying creditors, filing income tax returns for the deceased, potentially filing estate tax returns, selling assets if the estate needs cash, and managing disputes between beneficiaries.
Debts Get Paid First
Beneficiaries receive nothing until the estate’s debts, administrative costs, and taxes are settled. If the estate doesn’t have enough cash, the executor may need to sell property. State law sets a priority order, with administrative expenses and funeral costs typically coming first, then secured debts, tax obligations, and unsecured creditors. Only after valid claims are resolved does the executor distribute what’s left.
Estate Taxes
Most estates don’t owe federal estate tax, but the executor needs to know the threshold. For 2026, the federal estate tax exemption is $15,000,000 per person.2Internal Revenue Service. Whats New – Estate and Gift Tax Estates above that face a top rate of 40% on the excess. The executor must file IRS Form 706 within nine months of the date of death for any estate above the threshold.3Internal Revenue Service. Instructions for Form 706 Some states impose their own estate or inheritance taxes at lower thresholds, so the executor’s tax work can extend beyond the federal return.
Choosing the Right Person
Pick someone organized, trustworthy, and willing to do the work. It doesn’t have to be your closest relative. A financially literate friend or a professional fiduciary may do a better job than a grieving family member. Executors are generally entitled to compensation, which under state law typically runs between about 2% and 5% of the estate’s value. Name at least one alternate. If your first choice can’t serve and there’s no backup, the court appoints someone, and it may not be who you’d want.
Limits on Who You Can Disinherit
You generally cannot use a will to completely cut out a surviving spouse. Most separate-property states give a surviving spouse the right to claim an “elective share” of the estate regardless of what the will says. The traditional share is roughly one-third, though the exact fraction and the formula for calculating it vary. The protection exists specifically to prevent spousal disinheritance. In community-property states, the surviving spouse already owns half of all property acquired during the marriage, so the issue plays out differently.
Children generally can be disinherited in most states, with the notable exception of Louisiana, which has forced-heirship rules. If you intend to leave a child out, it’s safer to name them in the will and explicitly state they receive nothing than to simply omit them. An omission can look like an accident, and many states have provisions protecting children who were accidentally left out, particularly those born after the will was written.
Optional Provisions Worth Considering
Funeral and Burial Wishes
You can state your preferences for burial, cremation, or donation of your body to science. The problem is timing. Wills are often not read until days or weeks after death, by which point funeral arrangements are already made. If your wishes are specific, tell your family separately and keep the will language as a backup.
Pet Care
Naming someone to take care of your pets in a will is better than nothing, but it isn’t enforceable the way most people assume. The named caregiver has no legal obligation to actually spend estate funds on the animal. A more reliable approach, available in a majority of states, is a pet trust: a separate arrangement where you fund a trust, name a caregiver, and appoint a trustee to oversee the money. The trustee makes sure the funds go to the animal’s care.
Digital Assets
Email accounts, social media profiles, cryptocurrency wallets, online banking, photo storage, and domain names are all digital assets your executor may need to access. Nearly 40 states have adopted the Revised Uniform Fiduciary Access to Digital Assets Act, which creates a framework for executor access. Your will can explicitly grant your executor authority to manage digital accounts, though platform-specific tools like Google’s Inactive Account Manager or Facebook’s Legacy Contact may take priority over what the will says. List your digital accounts (not passwords) in a secure document referenced in the will, and use each platform’s built-in legacy tools where available.
No-Contest Clauses
If you’re worried a beneficiary might challenge the will, you can include a no-contest clause. It says that any beneficiary who files a legal challenge forfeits their inheritance. Most states enforce these clauses, though courts tend to interpret them narrowly. Several states recognize a “probable cause” exception that protects beneficiaries who challenge in good faith with legitimate evidence of fraud or undue influence. A few states, including Florida, refuse to enforce no-contest clauses at all. The clause only works if the person has something meaningful to lose; leaving a potential challenger nothing gives them no reason to comply.
Charitable Gifts
You can direct specific dollar amounts, percentage shares, or particular assets to charitable organizations. Deciding between a specific bequest and part of the residuary clause depends on how large and how certain you want the gift to be. Charitable bequests may also reduce the taxable estate for estates above the federal exemption threshold.
Making the Will Legally Valid
A will that doesn’t meet your state’s formal requirements is worthless, no matter how clearly it states your wishes. The details vary, but most states follow a similar pattern.
Writing, Signature, and Witnesses
The will must be in writing and signed by you. Your signature typically must be witnessed by at least two people who watch you sign and then sign the document themselves. Witnesses should be “disinterested,” meaning they don’t stand to inherit anything under the will. A witness who is also a beneficiary can cause problems ranging from that person losing their bequest to the entire will being questioned.
Self-Proving Affidavits
In nearly every state, you can attach a self-proving affidavit to the will. It’s a sworn statement, signed by the witnesses in front of a notary, confirming they watched you sign voluntarily and that you appeared mentally competent. The affidavit replaces the need for witnesses to appear in probate court after your death to confirm the will is genuine. Skipping this step doesn’t invalidate the will, but it creates delay in probate, and if a witness has moved or died by then, proving the will becomes much harder.
Holographic Wills
Roughly half of U.S. states recognize holographic wills, which are handwritten wills that don’t require witnesses. Requirements vary. Some states insist the entire document be in your handwriting; others only require the key provisions and signature. Holographic wills are better than nothing in an emergency, but they’re far more vulnerable to challenge than a properly witnessed and notarized will. If you have time to plan, use the formal process.
When to Update Your Will
A will isn’t a document you write once and forget. Major life changes should trigger a review.
- Marriage, divorce, or remarriage. Many states automatically revoke bequests to a former spouse upon divorce, but not all. A new marriage may entitle your spouse to a share of the estate that overrides an old will.
- Birth or adoption of a child. Children born after the will was signed may be entitled to a statutory share if the will doesn’t account for them.
- Death of a beneficiary or executor. If the person you named can no longer serve, your alternates step in. If you didn’t name any, the court decides.
- Significant financial changes. A major inheritance, selling a business, or buying property can make existing bequests impractical.
- Moving to a new state. Will formalities, spousal rights, and tax rules differ. A will that was valid where you signed it is generally still valid, but its provisions may interact differently with your new state’s laws.
For minor edits, like updating a beneficiary’s name or adjusting a dollar amount, a codicil works. A codicil is a formal amendment to an existing will and must meet the same execution requirements: written, signed, and witnessed. For anything more substantial, draft a new will that includes a clause revoking all prior wills and codicils. It’s cleaner and less likely to create confusion. Once the new will is signed, physically destroy old copies so no one accidentally or intentionally probates the wrong version.
What Happens Without a Will
Dying without a will, called dying “intestate,” hands control to your state’s default inheritance rules. These rules follow a rigid hierarchy that typically starts with your spouse and children, then moves to parents, siblings, and more distant relatives. An unmarried person’s estate generally goes first to their children in equal shares, then to parents if there are no children, then to siblings. For married people, the split between a surviving spouse and children depends on whether the state follows community-property or separate-property rules.
Intestacy laws ignore your preferences. Stepchildren, unmarried partners, close friends, and charities get nothing unless the will names them. If the state can’t locate any relatives at all, your entire estate goes to the state government. A will is how you override these defaults and keep control over what you’ve spent your life building.