Last will and testament

A will says who gets your property and who is in charge of handing it over. It takes effect at death, and not a moment before.

Most of the trouble people run into is not about what a will says. It is about what a will was never able to do, discovered by a family who assumed otherwise.

What a will does

• Names who receives the property that passes through your estate
• Names an executor to carry that out
• Names a guardian for minor children, which no other document does
• Can create a trust at death for a child or a beneficiary who should not receive money outright

It is worth being blunt about one thing a will does not do, because it is the most common belief on the subject: a will does not avoid probate. A will is the document that directs probate. If avoiding probate is the goal, the will is not the tool.

Signing it correctly

The Uniform Probate Code, which many states follow in some form, sets three requirements. A will must be:

(a) in writing; (b) signed by the testator or in the testator's name by some other individual in the testator's conscious presence and by the testator's direction; and (c) signed by at least two individuals, each of whom signed within a reasonable time after he witnessed either the signing of the will ... or the testator's acknowledgment of that signature or acknowledgment of the will.

Writing, your signature, two witnesses. States differ on the details, and the details are where do-it-yourself wills fail.

Some states allow a notarised will instead of witnesses; many do not. The current uniform text offers notarisation as an alternative, but states that adopted earlier versions do not all include it. Do not assume a notary substitutes for witnesses where you live.

Do not use a beneficiary as a witness. Under the Uniform Probate Code the will survives this, "the signing of a will by an interested witness does not invalidate the will or any provision of it." Other states are harsher. New York voids the gift itself: a disposition to an attesting witness "is void unless there are, at the time of execution and attestation, at least two other attesting witnesses to the will who receive no beneficial disposition." The will usually survives either way. The gift may not. There is no upside to the risk.

Ask for a self-proving affidavit. This is a sworn statement by you and the witnesses, taken before a notary, attached to the will. Its purpose is practical: it proves the will was properly executed without the court having to find your witnesses years later. It requires a notary in addition to the two witnesses, not instead of them.

Handwritten wills are valid in some states. The uniform rule treats a non-conforming document as a valid holographic will "whether or not witnessed, if the signature and material portions of the document are in the testator's handwriting." Whether your state recognises one, and on what terms, is a question to check locally rather than to assume.

The safe habit: two witnesses who inherit nothing and are not related to you, all signing together in the same room, plus a notarised self-proving affidavit.

The four things a will does not control

1. Anything with a beneficiary form on it

This is the most expensive mistake in the whole subject.

Retirement accounts, life insurance, payable-on-death bank accounts, and transfer-on-death brokerage accounts pass by their own designation. So does property held in joint tenancy with right of survivorship. None of it is in your estate, and your will does not touch it.

If your will leaves everything to your children but your 401(k) still names an ex-spouse from a marriage that ended years ago, the ex-spouse receives the 401(k). The will loses.

For many families these accounts are most of what they own. Reviewing beneficiary designations costs nothing, takes an afternoon, and is frequently worth more than the will itself. Do it after every marriage, divorce, birth, and death.

2. Anything that happens before you die

A will has no effect while you are alive. If you are in a hospital bed unable to make decisions, your will is irrelevant, it has not taken effect and cannot.

That window belongs to two other documents: a durable financial power of attorney and a medical power of attorney or health care proxy.

And those stop where the will begins. Under the Uniform Power of Attorney Act, a power of attorney terminates when "the principal dies." Texas says the same: "A durable power of attorney terminates when: (1) the principal dies."

So the two documents are strictly sequential. The power of attorney covers life with incapacity and stops at death. The will starts at death. Neither covers the other's window, and a family with only one of them has a gap.

3. Your medical decisions

A will cannot name someone to make health care decisions for you, for the same reason, it does not operate during your life. That is the medical power of attorney's job, and if you name nobody, your state's default surrogate list decides instead.

4. Your funeral, in practice

This one is more subtle than it is usually reported, and the nuance matters.

Funeral wishes in a will are not legally ineffective. Texas expressly allows written directions for the disposition of remains to be given "in a will, a prepaid funeral contract, or a written instrument signed and acknowledged by such person." California permits a person to "direct, in writing, the disposition of his or her remains and specify funeral goods and services to be provided."

The problem is timing. The will is frequently not located, let alone read, until after the burial or cremation has already happened. A legally valid instruction that nobody reads in time accomplishes nothing.

States provide a separate mechanism, and it is the one to use. Texas sets out a priority list of who controls disposition, headed by "the person designated in a written instrument signed by the decedent," and supplies a statutory appointment form: "All decisions made by my agent with respect to the disposition of my remains, including cremation, shall be binding."

So the correct advice is not "a will cannot do this." It is: do not rely on the will alone. Sign your state's separate designation, and tell the person you named that you named them.

One caution worth knowing: California attaches a funding condition to written directions, requiring arrangements that preclude payment by the survivors. An unfunded written wish carries less weight than people assume.

If you die without one

Your state's intestacy statute decides, and its answer is often not what people expect.

The widespread belief is that a surviving spouse inherits everything. That is true in many cases and false in a specific, common one: where there are children from another relationship.

Utah's statute is a clear example. The surviving spouse takes the entire estate if all the decedent's surviving descendants are also descendants of that spouse. But where "one or more of the decedent's surviving descendants are not descendants of the surviving spouse," the spouse takes "the first $75,000, plus 1/2 of any balance of the intestate estate."

Read that against a blended family with a house. The spouse does not simply keep it. Children from a first marriage own half the balance, and the practical result can be a forced sale of a home the survivor lives in.

The dollar figure is Utah's and does not travel. The pattern does. If you have children from more than one relationship, find out what your state's statute actually says.

Intestacy also fills gaps in a will that only partly works, "any part of a decedent's estate not effectively disposed of by will passes by intestate succession."

Where to keep it

The original matters. Courts generally want the signed original, not a photocopy.

A safe deposit box is more complicated than it is worth. The popular claim that a box is sealed on death and the will is unreachable is overstated, many states have a defined procedure. Minnesota's, for example, has the bank open the box on proof of death in the presence of a qualifying person, copy anything that appears to be a will, and deliver the original to the clerk of court.

But note what that involves: proof of death, a qualifying interested person, an affidavit, and a bank employee. It is procedure and delay, at exactly the moment the document is needed. Not permanent loss, and not convenient either.

Some states let you deposit a will with the court. Texas lets a testator deposit a will with the county clerk of their county of residence for a $5 fee, and issues a certificate of deposit for it. Texas also lets an attorney or firm holding a will deposit it with the county clerk if they cannot keep custody and, "after a diligent search," cannot find the testator, useful if a parent's lawyer has retired or died.

Whoever holds it has a legal duty after your death. A custodian "shall deliver it with reasonable promptness to a person able to secure its probate," and one who wilfully fails to do so "is liable to a person aggrieved for damages."

The practical answer for most people: keep the signed original somewhere fireproof at home or with your attorney, and make sure at least one adult knows exactly where it is. A will nobody can find is functionally a will you never wrote.

What to actually do

1. Write or update the will. Name an executor and, if you have minor children, a guardian.
2. Sign it with two disinterested witnesses and a notarised self-proving affidavit.
3. Pull up every beneficiary designation you have and confirm each names who you think it names.
4. Sign a durable financial power of attorney and a medical power of attorney. The will does not cover incapacity.
5. Sign your state's separate designation for disposition of remains, and tell that person.
6. Tell one adult where the original is.

Step three is the one people skip, and it is the one that most often undoes everything else.

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The 72-Hour File has a paper map recording which of these documents exist, where each is kept, and who else knows, plus a page for what your beneficiary designations currently say. See what is inside