If life were totally predictable, estate planning might just involve a checklist. But because life is full of surprising twists and turns, jobs change, families move, babies are born, and family members disagree after a loved ones pass…a will becomes the single best tool for making your voice heard after you’re no longer here. But what exactly is a will? And, what are the requirements for a valid and enforceable will? Continue reading to find the answers to your questions and to learn more about wills.
What, exactly, is a will?
In legal terms, a will, short for Last Will and Testament, is a written statement that directs how your property should be distributed after your death. The property addressed in your will can include real estate, bank accounts, family heirlooms, and anything you own. In your will, you name the person who will carry out your wishes. This person is called an “executor,” some states like Florida for instance use the term “personal representative.” A will can help you nominate a guardian for minor children, and even set aside funds to be placed in a trust for specific purposes. The will becomes legally effective through probate after you die.
What is probate?
Probate is the court-supervised process that kicks into gear after someone dies. Its job is to make sure that a person’s will is valid, their debts are paid, and their assets are distributed to the right people. Think of it as the legal cleanup crew sorting through what’s left behind and making sure everything lands where it’s supposed to. Sounds reasonable, right? And in many cases, it is. Probate provides structure, oversight, and legal certainty. But it’s not without its quirks.
For one, it can be slow, sometimes taking months to even a year or more to complete the process. And because it’s a public process, anyone can potentially view the details of your estate. Plus, court fees, attorney costs, and executor commissions can eat into the value of the estate itself. That’s why many people try to minimize or avoid probate altogether by using tools like living trusts, joint ownership, transfer on death deeds, “lady bird deeds, or payable-on-death accounts. It’s not that probate is inherently bad. It exists for a reason. But if you’re someone who prefers privacy, speed, and a little less government oversight after you’re gone, then building an estate plan that sidesteps probate might be your move. Talk to an attorney in your area who’s experienced in estate planning to learn more about your options and whether you should try to avoid probate.
What are the requirements for a valid and enforceable will?
Creating a valid will isn’t rocket science, but it does require attention to detail. Most states require that a will be written, either typed or handwritten, and signed by you, the testator. You’ll also need at least two witnesses. These two people must see you sign the will and affirm that you’re of sound mind. Some states require that the witnesses sign in the presence of each other and the testator, and that the testator sign in front of the witnesses. These witnesses cannot be family members and cannot be a beneficiary in the will. You need to demonstrate something called testamentary intent and capacity, which means you understand what a will is, what property you own, and who would inherit this property if the will were enforced (Estate of Duke (2015)). It must also be clear that you intend for this document to act as your last will and testament, and that you intend to revoke any prior wills or amendments made to your previous will. While notarization isn’t strictly required in every state, adding a self-proving affidavit can make the probate process significantly smoother, since your witnesses won’t need to appear in court to validate the will.
Texas, for example, outlines these requirements clearly in the Estates Code §251.051. Texas, along with about half of the states, allows handwritten wills (TX Est. Code §251.051). A handwritten will is called a “holographic will,” and they’re allowed in these states as long as the entire document is in your handwriting and signed by you. Texas, California, Arizona, Colorado, and several other states, don’t require witnesses and notarization for a holographic will. But don’t expect to scratch a quick note on a napkin and call it a day! If you are hand writing your will, both your intentions and your penmanship must be crystal clear. Notably, some states, such as Florida, do not recognize holographic wills at all.
Handwritten or typed, all wills can be challenged and the court needs to see that your will expressed testamentary intent. As discussed above, this means that you intended for this specific document to act as your last will and that you were of sound mind when writing it. If either of those facts are in doubt, your will might not be upheld. It’s highly recommended that you consult an attorney before DIY’ing your will. Your wishes for how your property is dispersed after you die is too important of a topic to approach haphazardly.
Why are there so many formalities?
Why does all of this matter? A will serves as your voice when you can no longer express your wishes. It ensures that the assets and property you have worked hard to accumulate are distributed according to your wishes. For those with minor children, a will is crucial in designating a guardian you trust to raise them. It’s reassuring that courts diligently review wills to confirm they reflect your true intentions, not those of someone who may have influenced you while incapacitated. The requirements of testamentary intent, witnesses, and notarization are designed to protect you, as well as the people and possessions most valuable to you.
What happens if I die without a will?
If someone dies without a will, this is called “dying intestate.” With no will in place, this person doesn’t get the final say in what happens to their property. Instead, their state’s intestacy laws step in like autopilot, deciding who inherits what, and in what order. Sounds efficient, right? Sure, but it’s not always aligned with what the person would’ve actually wanted.
Intestate succession laws vary by state, but they generally prioritize close family. In most places, if you’re married and die without a will, your spouse will inherit all or most of your estate. If you have children, they’ll often split the inheritance with your spouse or get everything if you’re unmarried. If you don’t have a spouse or kids, the estate usually goes to your parents, siblings, or even more distant relatives. And if no living relatives can be found? The state itself may get your stuff. Yes, seriously. It’s called “escheat,” and it happens more than you’d think.
But here’s where it gets tricky and why state differences matter. Let’s say you live in California and die without a will. Your separate property might be split between your spouse and children, but your community property would go to your spouse alone (Cal. Prob. Code §6401). In Texas, another community property state, the outcome can shift depending on whether the kids are from a prior marriage (TX Est. Code §251.051). In New York, a separate property state, the first $50,000 goes to your spouse, and the rest is split with your kids (EPTL §4-1.1). The formulas vary. The outcomes vary. And your actual intentions will be completely lost in translation.
Also, intestacy doesn’t account for real-life complications. Have a long-time partner but never got married? Sorry, they may get nothing. Estranged from your sibling but close with your best friend? The law may not care. And stepchildren? Unless legally adopted, they’re typically out of luck.
Other important estate planning documents
It’s important to understand that a will is just one piece of the estate planning puzzle. While a will handles property distribution and guardianship designation, it often works alongside other documents like trusts, powers of attorney, guardian declarations, and healthcare directives. These tools together create a more complete safety net. Here’s a brief description of a few supplementary estate planning documents:
Trust
A trust is a legal arrangement where a person (the “grantor” or “settlor”) puts assets like money, property (real and personal), or investments into a trust to be managed by another person (the “trustee”) for the benefit of someone else (the “beneficiary”). Trusts can be used for all kinds of purposes, from avoiding probate and minimizing estate taxes to protecting assets for children or loved ones with special needs.
Power of Attorney
A power of attorney (POA) is a legal document that empowers someone else to act on your behalf. You, the “principal,” get to decide how broad or narrow that authority is, and the person(s) who will serve as your agent or attorney-in-fact. A POA can be tailored to suit various needs: it can be limited to handling simple tasks, such as allowing someone to sign a check while you’re away, or it can be expansive, covering complex financial transactions or even authorizing decisions about your medical care if you become incapacitated.
Health Directive
A health directive, also known as an “advance directive” or “living will” is a legal document that spells out your medical wishes if you’re ever unable to speak for yourself. It’s your chance to answer questions like: Do I want to be kept on life support? Would I want CPR? What kind of pain management do I want? Health directives often go hand-in-hand with a medical power of attorney, which names someone you trust to make health care decisions for you if you can’t.
When you consult an attorney to draft your will, make sure to ask them about these other estate planning documents. Depending on your situation, you might benefit from all of them in addition to a will.
Bottom line on wills
A will is more than a legal document. It’s an act of love and responsibility. It spares your family from guessing games and potential disputes, giving them clarity and direction during an emotionally tough time. Even if your assets are modest, a will helps ensure that your values, relationships, and final wishes are honored. If you don’t make a will, the state makes the decisions for you, and it’s a one-size-fits-all version that may not necessarily consider your wishes. That might work for some people, but for anyone with specific wishes, nontraditional family structures, blended families, or just a desire to keep things private and tidy, making a will is a great way to protect your legacy. So whether you’re a minimalist with a few treasured keepsakes or someone with a sprawling estate, crafting a will means you get to write the final chapter your way. Your loved ones will thank you for it.
Jourdan Stewart is Legal Operations Attorney at HelloPrenup, and a Texas licensed attorney. Jourdan is experienced in drafting prenuptial agreements, and her legal expertise extends to other aspects of family law, business law and entertainment law. Jourdan earned her law degree from Pepperdine University, her MBA from The Acton School of Business, and her BBA from Baylor University. Jourdan’s favorite aspect of legal practice is helping clients fully understand and achieve their goals. She finds great satisfaction in tailoring solutions to each client’s unique set of wants and needs. When she’s not practicing law, Jourdan can be found in nature with her two children and their dog, Stewey.
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