The questions to ask when making a will fall into a handful of groups: what you actually own, which of those assets your will can even control, who you want to receive them, who will carry out your instructions, who will raise your minor children, and what should happen if the plan is disrupted by death, divorce, or a later-born child. Work through them in that order and the document largely writes itself. Skip one and your family may spend years, and real money, sorting out what you meant.
What Do You Own, and What Do You Owe?
You cannot divide what you have not counted. List everything of value: real estate, vehicles, bank accounts, investment portfolios, retirement accounts, jewelry, artwork, and collectibles. Add digital assets like cryptocurrency, domain names, and online accounts with stored content or monetary value.
Then list the debts: mortgages, car loans, credit card balances, student loans, and any outstanding tax obligations. Your executor pays legitimate debts from the estate before anything goes to beneficiaries, so the gap between the two columns is what you actually have to give away.
One debt question catches families off guard: what happens to the mortgage on an inherited home? Federal law prohibits lenders from calling a residential mortgage due simply because the borrower died and a relative inherited the property. The protection covers transfers to relatives after the borrower’s death and transfers that happen automatically between co-owners like joint tenants.1Office of the Law Revision Counsel. 12 USC 1701j-3 – Preemption of Due-on-Sale Prohibitions Your heirs still have to keep making payments, but the lender cannot force an immediate payoff.
Which Assets Does Your Will Actually Control?
This is where people make one of the most expensive mistakes in estate planning. Your will does not control every asset you own. Retirement accounts like 401(k)s and IRAs, life insurance policies, annuities, and any bank or investment account with a payable-on-death or transfer-on-death designation all pass directly to whoever is named on the beneficiary form, regardless of what your will says.
If your will leaves your IRA to your son but the beneficiary form on file still names your ex-spouse, the ex-spouse gets the money. The U.S. Supreme Court has ruled that ERISA-governed retirement plans must follow the beneficiary designation on file, not a conflicting will or even a divorce decree.2U.S. Department of Labor. Current Challenges and Best Practices Concerning Beneficiary Designations in Retirement and Life Insurance Plans The plan administrator pays whoever the form says to pay.
Your will controls what has no beneficiary designation or survivorship feature: personal property like furniture, jewelry, and household items; real estate held in your name alone; and bank or investment accounts without a TOD or POD designation. Before you decide how to distribute your estate, pull every beneficiary form on every financial account and make sure they match what the will says. Review them together, not years apart.
Who Gets What?
Once you know which assets your will governs, decide who receives them. You can make specific gifts of particular items or dollar amounts to named people or organizations. Everything left over after those specific gifts and after debts and expenses are paid is called the residuary estate. Name someone to receive that too, or a court will decide where it goes.
For every beneficiary, name an alternate. If the primary beneficiary dies before you or declines the inheritance, the alternate steps in without court involvement. Without one, that gift may fall into the residuary estate or get distributed under your state’s default inheritance rules.
Can You Leave a Spouse Out?
In most states, no, not completely. Elective share laws give a surviving spouse the right to claim a fixed percentage of the estate, traditionally around one-third, even if the will leaves them nothing. A prenuptial or postnuptial agreement can waive that right. Without one, your spouse has a legal claim that overrides the will, so if you want to leave a spouse less than the elective share, talk to an estate planning attorney about your state’s rules first.
What About Children Born Later?
If you have a child after making your will and never update it, most states have pretermitted heir laws that protect that child. The omitted child typically receives the share they would have gotten if you had died without a will. Some states extend this protection to any child not mentioned in the will, not just those born after it was signed.3Legal Information Institute. Pretermitted Heir You can avoid the issue by including language that accounts for future children, either as a class (“my children, born or adopted”) or by stating explicitly that any omission is intentional.
Who Will Handle Your Estate?
Your executor gathers your assets, pays your debts and taxes, files final tax returns, and distributes what remains to your beneficiaries.4Internal Revenue Service. Responsibilities of an Estate Administrator This is a real job that can take months or years for a complicated estate. Pick someone organized, trustworthy, and willing to do paperwork under pressure. They don’t need to be a lawyer or financial professional, but they do need to actually follow through.
Name an alternate executor. If your first choice can’t serve when the time comes, a backup keeps the court from appointing someone you would not have chosen.
Should You Waive the Bond Requirement?
Most states require executors to post a surety bond, essentially an insurance policy that protects the estate if the executor mishandles funds. The premium comes out of estate assets, which means less money for your beneficiaries. If you trust your executor, you can include a provision waiving the bond, and courts generally honor it, especially when all beneficiaries agree. Waiving the bond does not reduce the executor’s legal obligations. It just saves the estate the cost of the premium.
Will Your Executor Be Paid?
Executors are entitled to compensation. Some states set fees by statute, typically around 1.5% to 3% of the estate’s value. Others use a “reasonable compensation” standard. You can address this in the will, either setting a specific amount or stating that the executor should serve without payment if they agree to it. Many family members waive the fee, but have the conversation before you assume.
Who Will Raise Your Children?
For parents of minor children, this is the single most important question in the entire will. A testamentary guardian takes over day-to-day care and decision-making for your children if both parents die. Without a nomination in your will, the court chooses, and the court’s choice may not match yours.
The best guardian is not always the closest relative. Weigh parenting style, financial stability, location, age, and willingness. Name an alternate in case your first choice can’t serve. If your children will inherit significant assets, consider whether the guardian should also manage the money or whether a separate trustee makes more sense. Splitting those roles adds accountability.
What If Plans Fall Apart?
A will written for today’s circumstances may not fit tomorrow’s. Good drafting anticipates the most common disruptions.
Survivorship Clauses
Many states follow a rule requiring a beneficiary to survive you by at least 120 hours (five days) to inherit. If your spouse dies in the same accident as you but lingers for two days, they may be legally treated as having predeceased you. A survivorship clause can extend or shorten that window and direct where assets go when the requirement isn’t met. Without clear language, the assets may pass through your beneficiary’s estate instead of going where you wanted.
Simultaneous Death and Common Disasters
If you and your primary beneficiary die in the same event and there’s no way to tell who died first, most states treat both as having predeceased each other. Address this directly in the will and route assets to contingent beneficiaries rather than leaving the question to a judge. It matters most for married couples who leave everything to each other.
Changes in Family Structure
Marriage, divorce, and new children all disrupt an estate plan. In many states, divorce automatically revokes provisions in your will that benefit your ex-spouse, but don’t rely on that. Marriage, by contrast, often does not revoke an existing will, which can leave a new spouse unintentionally cut out. Build in flexibility by using class descriptions (“my children”) instead of only naming individuals, and review the document after any major family change.
Should You Include Personal Wishes?
Funeral and Burial Instructions
You can write funeral and burial preferences into your will, but there’s a practical problem: wills are often not read until days or weeks after the funeral. In most states, funeral wishes in a will are not legally binding because your body is not estate property. If specific arrangements matter, put them in a separate written document your executor and family can access immediately, and talk about your preferences while you’re alive. Some states give legal weight to signed written disposition instructions, so a standalone letter of instruction often carries more practical force than a will clause nobody reads in time.
Pet Care
Pets cannot inherit property, but every state now allows enforceable pet trusts. A pet trust lets you set aside money for your animal’s care and name a caretaker and a trustee to manage the funds. It is far more reliable than an informal note asking a friend to look after your dog. Without a trust, there’s no legal mechanism to ensure the money is actually spent on the animal.
Digital Assets
Email accounts, social media profiles, photo libraries, cryptocurrency wallets, domain names, and online financial accounts all need to be addressed. Most states have adopted legislation based on the Revised Uniform Fiduciary Access to Digital Assets Act, which lets you authorize your executor to manage digital accounts. In the will or a separate document, specify which accounts should be preserved, transferred, or deleted, and make sure your executor has the information needed to access them. A password manager with a shared emergency access feature is often more useful than a printed list that goes stale.
Should You Include a No-Contest Clause?
A no-contest clause, sometimes called an in terrorem clause, says that any beneficiary who challenges the will forfeits their inheritance. These clauses are designed to discourage lawsuits and work best when the potential challenger stands to lose a meaningful bequest. If you leave someone nothing, a no-contest clause has no teeth, because there is nothing to forfeit.
Most states enforce these clauses, but with significant exceptions. Many courts won’t enforce the penalty if the challenger had probable cause to believe the will was the product of fraud or undue influence. Florida does not enforce them at all. If you anticipate a family dispute, a no-contest clause is worth discussing with your attorney, but it is not a guarantee of peace.
How Do You Make a Will Legally Valid?
A will that doesn’t meet your state’s execution requirements is just paper. The basic requirements in nearly every state are the same: you must be a legal adult of sound mind, the will must be in writing, you must sign it, and two witnesses must also sign. The witnesses should be people who are not beneficiaries. Having a beneficiary serve as a witness won’t necessarily invalidate the will, but it can create grounds for a challenge and may cause that witness-beneficiary to lose their gift in some states.
A notary is not required in most states, but attaching a self-proving affidavit, signed by you and your witnesses in front of a notary, streamlines probate significantly. With it, the court can validate the will without tracking down the witnesses to testify. Nearly every state except the District of Columbia, Maryland, Ohio, and Vermont allows this.
When Should You Update Your Will?
Writing a will is not a one-time event. Any of the following should trigger a review:
- Marriage or divorce, which can change beneficiaries’ legal rights and may partially revoke your existing will by operation of law.
- Birth or adoption of a child, who needs to be accounted for both as a beneficiary and in your guardian designation.
- Death of a beneficiary or executor. Contingency plans take over, but you should still update the document rather than relying on backups indefinitely.
- Major financial changes, such as buying or selling a home, starting a business, or receiving an inheritance.
- Relocation to a new state. Wills valid in one state are generally recognized in another, but differences in community property rules, elective share percentages, and execution requirements can create problems.
Do Estate Taxes Affect Your Plan?
For most families, no. Under the One Big Beautiful Bill Act signed into law in July 2025, the federal estate and gift tax exemption rises to $15 million per individual starting January 1, 2026, with a $30 million combined exemption for married couples. That amount is permanently indexed for inflation. Estates above the exemption are taxed at 40%.
If your estate is well below $15 million, federal estate tax probably is not a factor. But roughly a dozen states impose their own estate or inheritance taxes with much lower thresholds, sometimes starting at $1 million. If you live in one of those states or own property there, the state-level tax can matter even when the federal tax does not. An estate planning attorney in your state can tell you whether your estate is in the range where tax planning changes how you structure the will.