A will is the most basic estate planning document — but most Americans do not have one. Here is what a will does, what it cannot do, and how to create one.
A will (formally, a Last Will and Testament) is a legal document that directs the distribution of your assets at death, names a guardian for your minor children, and appoints an executor to administer your estate. It is the foundation of every estate plan. Without a will, state law determines who inherits your property — which may not match your wishes.
A will is your final set of instructions to the world. It tells your family who gets your property, who will raise your children, and who is in charge of carrying out your wishes. Without a will, the state writes those instructions for you — and the state's version is a generic formula that ignores your specific family situation, relationships, and values.
Every adult should have a will — regardless of age, wealth, or family situation.
Approximately 67% of American adults have no will. The most common reasons: they think they are too young, they believe they do not have enough assets, or they find it uncomfortable to think about death. The result: families face unnecessary probate proceedings, assets go to unintended heirs, and minor children may be placed with guardians the parents would never have chosen.
Dying without a will (intestate) means state law determines who inherits your property — your unmarried partner, stepchildren, and close friends receive nothing.
Without a will naming a guardian, a court decides who raises your minor children.
A will must go through probate — a public court process that can take 12–18 months and cost 3–8% of the estate.
A will does not control assets with beneficiary designations (retirement accounts, life insurance) or jointly held assets.
An outdated will may not reflect your current family situation — divorce, new children, or changed relationships.
A will that does not meet your state's formal requirements (witnesses, notarization) may be invalid.
In the Mini Family Office model, the will is one component of a comprehensive estate plan — not the entire plan. The will works in concert with a revocable living trust, beneficiary designations, powers of attorney, and healthcare directives to create a complete, coordinated system. The will serves primarily as a safety net for assets that were not transferred to the trust and as the vehicle for naming guardians for minor children.
A will can include a charitable bequest — a gift to a charity, donor-advised fund, or private foundation at death. A charitable bequest reduces the taxable estate and creates a lasting philanthropic legacy. Even a modest bequest — 1–5% of the estate — can make a significant difference to the charities you care about. The Law & Tax Foundation model recommends that every will include a charitable bequest provision.
Last Will and Testament — the foundational document directing asset distribution and naming guardians
Pour-Over Will — directs assets to a revocable living trust at death
Testamentary Trust — a trust created within a will that takes effect at death
Codicil — an amendment to an existing will
Self-Proving Affidavit — simplifies the probate process by pre-authenticating the will
Letter of Instruction — a non-legal companion document providing practical guidance to the executor
Digital Asset Directive — instructions for managing digital accounts and assets after death
Access our full research library for case law, IRS codes, and government sources supporting this topic.
View ResearchIf you do not have a will, our free pro bono assessment is the first step. We will help you understand what documents you need and connect you with a qualified estate planning attorney who can create a plan that reflects your wishes.
Create a will today — even a simple will is far better than no will.
Name a guardian for your minor children — this is the most important decision in your will.
Review your will every 3–5 years or after any major life event — marriage, divorce, new children, or significant change in assets.
Store your will in a safe, accessible location and tell your executor where it is.
Understand that a will alone does not avoid probate — consider a revocable living trust for probate avoidance.
Include a digital asset directive — instructions for managing your online accounts and digital assets after death.
Educate clients that a will alone does not avoid probate — recommend a revocable living trust for most clients.
Include a guardian nomination provision in every will for clients with minor children.
Recommend a pour-over will as a companion to every revocable living trust.
Include a digital asset directive in every will — it is increasingly important as clients hold significant digital assets.
Implement a systematic review process — contact clients every 3–5 years to review and update their wills.
Educate clients about the limitations of a will — it does not control beneficiary designations, jointly held assets, or trust assets.
Estate Planning Hotline — c/o Estate Law Training Center / Law & Tax Foundation
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