Steps to Create a Legal Will

Quick answer

• Clearly define your beneficiaries and what assets they will receive.
• Choose an executor who will manage your estate according to your wishes.
• Consider a trust for complex situations or minor beneficiaries.
• Consult an estate planning attorney for personalized advice and to ensure legal validity.
• Store your will in a safe, accessible place and inform your executor of its location.
• Review and update your will periodically, especially after major life events.

Who this is for

• Individuals who want to ensure their assets are distributed according to their wishes after their passing.
• Parents who want to designate guardians for their minor children.
• Anyone who wants to avoid potential family disputes or legal complications regarding their estate.

What to check first (before you act)

Goal and timeline

What do you want your will to achieve? Is it simply to distribute assets, or are there specific wishes for charitable giving, care of pets, or digital assets? Your timeline will depend on the complexity of your estate and how quickly you want this peace of mind. For most, setting up a will can be a straightforward process, but complex estates might require more time.

Current cash flow

While not directly tied to the creation of a will, understanding your current financial situation helps in assessing the value and nature of assets you’ll be distributing. This can inform decisions about whether more complex estate planning tools, like trusts, might be beneficial.

Emergency fund or safety buffer

Having an emergency fund ensures your daily needs are met and prevents the need to liquidate estate assets prematurely to cover unexpected expenses during your lifetime. This is separate from your estate, but a strong financial foundation makes estate planning easier.

Debt and interest rates

Knowing your outstanding debts and their interest rates is crucial. While your will primarily deals with asset distribution, your estate will likely be responsible for settling debts before beneficiaries receive their inheritance. High-interest debt can significantly impact the net value of your estate.

Credit impact

Creating a will does not directly impact your credit score. However, proper estate planning can prevent financial distress for your heirs, which indirectly supports long-term financial stability for your family.

Step-by-step (simple workflow)

1. Inventory Your Assets and Debts

What to do: Make a comprehensive list of everything you own (real estate, bank accounts, investments, vehicles, personal property) and all your outstanding debts (mortgages, loans, credit cards).
What “good” looks like: A detailed and organized list that provides a clear picture of your net worth.
A common mistake and how to avoid it: Forgetting about digital assets like online accounts, cryptocurrency, or digital subscriptions. Avoid this by specifically thinking about online services and accounts you use.

2. Identify Your Beneficiaries

What to do: Decide who will inherit your assets. Be specific with full names and relationships. Consider contingent beneficiaries in case your primary choices predecease you.
What “good” looks like: Clear identification of individuals or organizations who will receive your estate, with backups in place.
A common mistake and how to avoid it: Being vague with beneficiary names, which can lead to confusion or disputes. Always use full legal names.

3. Choose an Executor

What to do: Select a trustworthy person (or institution, like a bank’s trust department) to manage your estate, pay debts, and distribute assets according to your will. Name an alternate executor as well.
What “good” looks like: An executor who is capable, responsible, and willing to take on the role.
A common mistake and how to avoid it: Not discussing the role with your chosen executor beforehand, or selecting someone who is not equipped to handle the responsibilities.

4. Designate Guardians for Minor Children (If Applicable)

What to do: If you have children under 18, name a guardian who will care for them if both parents pass away. Name an alternate guardian.
What “good” looks like: A designated guardian who is willing and able to raise your children according to your values.
A common mistake and how to avoid it: Failing to appoint a guardian, leaving the court to decide, or not discussing this sensitive decision with the chosen guardian.

5. Decide How to Distribute Assets

What to do: Specify how your assets will be divided among your beneficiaries. You can leave specific items or percentages of your estate.
What “good” looks like: Clear instructions on asset distribution that align with your wishes.
A common mistake and how to avoid it: Making overly complicated distribution plans that are difficult to execute or lead to unintended consequences. Keep it as clear as possible.

6. Consider a Trust (Optional)

What to do: For complex estates, minor beneficiaries, or to avoid probate, you might consider establishing a trust as part of your estate plan.
What “good” looks like: A trust structure that effectively meets your specific goals for asset management and distribution.
A common mistake and how to avoid it: Creating a trust without understanding its implications or if it’s truly necessary for your situation. Consult a professional to determine if a trust is right for you.

7. Draft Your Will

What to do: Write down your wishes clearly and comprehensively. You can use online services, software, or hire an attorney.
What “good” looks like: A document that accurately reflects your intentions and is legally sound.
A common mistake and how to avoid it: Using a generic online template without customizing it to your specific circumstances or failing to ensure it meets your state’s legal requirements.

8. Sign and Witness Your Will

What to do: Sign your will in the presence of witnesses, as required by your state’s laws. Typically, two or three disinterested witnesses are needed.
What “good” looks like: A properly executed will that adheres to all legal formalities for signing and witnessing in your jurisdiction.
A common mistake and how to avoid it: Improper witnessing (e.g., a beneficiary acting as a witness, or witnesses not being present simultaneously) can invalidate the will. Always follow your state’s specific rules precisely.

9. Store Your Will Safely

What to do: Keep the original will in a secure but accessible place. Inform your executor and trusted family members where it is located.
What “good” looks like: The original will is protected from loss or damage, and your executor knows how to find it.
A common mistake and how to avoid it: Storing it in a safe deposit box that may be inaccessible immediately after your death, or not telling anyone where it is.

10. Review and Update Your Will

What to do: Revisit your will every few years or after significant life events (marriage, divorce, birth of a child, death of a beneficiary, major changes in assets).
What “good” looks like: An up-to-date will that still reflects your current wishes and circumstances.
A common mistake and how to avoid it: Letting your will become outdated, meaning it no longer reflects your current relationships or asset situation, potentially leading to unintended consequences.

Common mistakes (and what happens if you ignore them)

Mistake	What it causes	Fix
Not having a will at all	Intestacy laws dictate asset distribution, which may not align with your wishes; potential for family disputes and lengthy court battles.	Create a legally valid will.
Vague beneficiary designations	Confusion and disputes among potential heirs; assets may go to the wrong people or the state.	Use full legal names and specify relationships clearly.
Choosing an unqualified or unwilling executor	Delays in estate administration, increased costs, and potential for mismanagement of assets.	Select a responsible, capable, and willing individual, and discuss the role with them.
Improperly signing or witnessing the will	The will can be declared invalid by the court, leading to intestacy.	Follow your state’s specific requirements for signing and witnessing precisely.
Forgetting digital assets	These assets may be lost or inaccessible to your heirs.	Include a clause or separate document detailing how to access digital accounts.
Not updating the will after major life events	The will may not reflect current relationships or wishes, leading to unintended distribution.	Review and update your will after marriage, divorce, birth of children, or death of a loved one.
Storing the will in an inaccessible location	The executor may not be able to find the will, delaying or preventing its execution.	Keep the original in a safe, known location and inform your executor.
Relying solely on online DIY wills without legal review	Potential for errors or omissions that could invalidate the will or create unintended consequences.	Consult an estate planning attorney to review your DIY will or have them draft it.
Not appointing guardians for minor children	The court will appoint a guardian, which might not be your preferred choice.	Clearly name guardians and alternate guardians for your minor children.
Including overly complex or ambiguous instructions	Difficulty in interpretation by the executor and potential for legal challenges.	Keep instructions clear, concise, and easy to understand.

Decision rules (simple if/then)

• If you have minor children, then you must designate legal guardians in your will because the court will otherwise decide who raises them.
• If your estate is complex (e.g., significant assets, business ownership, or potential for estate taxes), then you should consult an estate planning attorney because they can ensure all legal requirements are met and your wishes are accurately reflected.
• If you are unsure about the legal requirements in your state, then you should seek professional legal advice because laws vary significantly by jurisdiction.
• If you have significant assets that could be subject to estate taxes, then you should discuss tax planning strategies with an attorney or financial advisor because there are ways to minimize tax burdens.
• If you want to ensure specific charities receive donations, then you must clearly name them and specify the assets or amounts in your will because otherwise, they may not receive anything.
• If you are considering leaving assets to individuals with special needs, then you should explore setting up a special needs trust within your will because this can protect their eligibility for government benefits.
• If you have named a beneficiary who is a minor, then you should consider establishing a trust or naming a custodian under the Uniform Transfers to Minors Act (UTMA) in your will because minors cannot directly inherit and manage significant assets.
• If you have recently divorced, then you should update your will immediately because divorce often invalidates provisions for your ex-spouse.
• If you have significant digital assets (e.g., cryptocurrency, online accounts), then you should create a separate, secure list of these assets and how to access them, and reference it in your will, because these are often overlooked.
• If you want to avoid the probate process for some or all of your assets, then you should investigate using tools like revocable living trusts or jointly owned property, but this requires careful planning and legal guidance.

FAQ

What is a will?

A will is a legal document that outlines your wishes for the distribution of your property and assets after your death. It also allows you to name an executor to manage your estate and guardians for minor children.

Do I need a will if I’m young and healthy?

Yes, everyone, regardless of age or health, should have a will. It ensures your assets go to the people you choose and provides instructions for your care if you become incapacitated.

What happens if I die without a will?

If you die without a valid will, your estate will be distributed according to your state’s intestacy laws. This means the government decides who inherits your assets, which may not align with your wishes.

Can I write my own will?

You can write your own will, but it must meet all the legal requirements of your state to be valid. It’s often recommended to have an attorney review it or draft it for you to ensure accuracy and enforceability.

What is probate?

Probate is the legal process of administering a deceased person’s estate. It involves validating the will, paying debts and taxes, and distributing assets to beneficiaries.

How often should I update my will?

It’s advisable to review your will every 3-5 years or after significant life events such as marriage, divorce, the birth of a child, or a major change in your financial situation.

Can I disinherit someone in my will?

In most states, you can disinherit someone, but it must be clearly stated in your will. However, some states have laws protecting spouses and minor children, so consulting an attorney is crucial.

What is an executor?

An executor is the person or entity you name in your will to be responsible for carrying out the terms of your will. This includes gathering assets, paying debts and taxes, and distributing the remaining property to beneficiaries.

What this page does NOT cover (and where to go next)

• Specific legal advice for your jurisdiction: Laws vary by state. Consult an estate planning attorney in your area for personalized guidance.
• Complex tax implications of estates: For detailed information on estate taxes and tax planning strategies, seek advice from a tax professional or estate planning attorney.
• Setting up trusts in detail: While mentioned, the intricacies of various trust types (e.g., living trusts, testamentary trusts) are beyond the scope of this basic guide.
• Long-term care planning: Decisions about healthcare directives, power of attorney, and long-term care insurance are separate but important components of comprehensive estate planning.
• Probate avoidance strategies in depth: While trusts are mentioned, a full exploration of all probate avoidance methods is a more advanced topic.