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Last Will and Testament

The document that says who inherits what - and, just as importantly, the many things it does not control.

Informational only - this is not legal advice. These definitions explain general legal vocabulary in plain English. They are not advice about your situation, reading them creates no attorney-client relationship, and the law differs from state to state and changes over time. For advice you can rely on, speak to a lawyer licensed in your state.

Looking for a lawyer rather than a definition? Skip to the state-by-state list of Wills law firms.

What it means

A will is a written direction, taking effect only at death, saying who receives the property that passes through the deceased person's estate and who is to administer it. Until death it controls nothing and can be changed or revoked at any time by someone with capacity. It is not a transfer: nothing moves on signing, and the person keeps full ownership of everything named in it.

The most consequential thing about a will is how much it does not reach. Property that passes by its own mechanism is not controlled by the will at all, no matter what the will says. A life insurance policy, a retirement account or a payable-on-death bank account passes to the named beneficiary; property held in joint tenancy with right of survivorship passes to the surviving owner; property already placed in a trust passes under the trust. These are collectively the non-probate estate, and in many ordinary estates they are the larger half. A will that leaves "everything equally to my three children" while an old retirement account still names a former spouse does exactly what both documents say, and the account is not divided.

What makes a will valid is set by state statute and is formal rather than substantive: writing, signature, and witnesses who sign in the manner the state requires. Most states additionally allow a self-proving affidavit, a notarized statement signed at the same time that lets the court accept the will without locating the witnesses years later - a small step that removes a common practical difficulty. Some states recognize handwritten (holographic) wills on their own terms; some recognize none. A will typically also names an executor, may name a guardian for minor children, and may include a residuary clause catching anything not specifically given away - the omission of which is a routine source of unintended intestacy for part of an estate.

Two later-life problems account for much of the litigation about wills, and both are worth understanding while there is still time to prevent them. The first is where the original is: many states presume that a will last known to be in the maker's possession and not found after death was deliberately destroyed, so a lost original can defeat a valid will. The second is that marriage, divorce, and the birth of a child after the will was signed all have statutory consequences that vary by state and can partially rewrite the document by operation of law.

Where this comes from

Wills are governed entirely by state law. Formal execution requirements, the recognition of holographic and self-proved wills, the effect of divorce or a later marriage, the rights of a child born after execution, revocation, and the presumption applied to a lost original are all set by state statute - roughly half the states have adopted some version of the Uniform Probate Code and the rest have not, so no single national rule exists. There is no federal statute of wills. Beneficiary designations on retirement accounts governed by ERISA are additionally subject to federal law, 29 U.S.C. §§ 1001 et seq., which is the mechanism by which a plan document can control over a state-law expectation. Any period for offering a will for probate, for a creditor to present a claim, or for an interested person to contest is fixed by state statute and none is stated on this page.

When people hire a lawyer for this

Two situations are worth an appointment rather than a form. The first is any estate where the answer is not obvious on the face of it - a blended family, a child with a disability whose means-tested benefits a direct gift would disturb, a business or farm that cannot sensibly be split, property in more than one state, a beneficiary with creditor or addiction problems, or an intention to leave someone out. Disinheriting a spouse in particular usually cannot be done by a will alone, because most states give a surviving spouse a statutory claim regardless of what the will says. The second is after a death, when you are holding a will and do not know what to do with it: the immediate practical questions are whether the original can be found, whether the estate must be administered at all, and what passes outside the will entirely - and those three answers determine everything that follows. Reviewing beneficiary designations at the same time as the will is the single highest-value hour in this area, because that is where the money usually is and it is the part a will cannot fix.

Worried about the cost? A lawyer can be hired for one part of a case only (limited-scope representation), may be paid from what a claim recovers (contingency fee), or may be free through a pro bono program or legal aid; a court can also waive its own filing fees.

Find Wills law firms in your state

Choose your state to see Wills law firms in the city where we list the most; your city may be under “other cities”, A to Z.

Alabama (Birmingham)
+1 other city
- Montgomery
Alaska (Anchorage)
Arizona (Scottsdale)
+6 other cities
Arkansas (Little Rock)
California (Long Beach)
+19 other cities
- Anaheim
- Chula Vista
- Fontana
- Fremont
- Los Angeles
- Modesto
- Oakland
- Riverside
- Sacramento
- San Bernardino
- San Diego
- San Francisco
- and 7 more with fewer listed firms
Colorado (Denver)
+2 other cities
- Aurora
- Colorado Springs
Connecticut (Bridgeport)
Delaware (Wilmington)
District of Columbia (Washington)
Florida (Orlando)
+5 other cities
Georgia (Atlanta)
Hawaii (Honolulu)
Idaho (Boise)
Illinois (Chicago)
Indiana (Fort Wayne)
+1 other city
- Indianapolis
Iowa (Des Moines)
Kansas (Wichita)
Kentucky (Lexington)
+1 other city
- Louisville
Louisiana (Baton Rouge)
+2 other cities
- New Orleans
- Shreveport
Maine (Portland)
Maryland (Baltimore)
Massachusetts (Boston)
Michigan (Detroit)
Minnesota (Minneapolis)
+1 other city
- Saint Paul
Mississippi (Jackson)
Missouri (Kansas City)
+1 other city
- St. Louis
Montana (Billings)
Nebraska (Lincoln)
+1 other city
- Omaha
Nevada (Henderson)
+3 other cities
New Hampshire (Manchester)
New Jersey (Newark)
+1 other city
- Jersey City
New Mexico (Albuquerque)
New York (Buffalo)
+2 other cities
- New York City
- Rochester
North Carolina (Charlotte)
+5 other cities
North Dakota (Fargo)
Ohio (Cincinnati)
+3 other cities
Oklahoma (Oklahoma City)
+1 other city
- Tulsa
Oregon (Portland)
Pennsylvania (Philadelphia)
+1 other city
- Pittsburgh
Rhode Island (Providence)
South Carolina (Columbia)
South Dakota (Sioux Falls)
Tennessee (Nashville)
+1 other city
- Memphis
Texas (Houston)
+12 other cities
Utah (Salt Lake City)
Vermont (Burlington)
Virginia (Chesapeake)
+3 other cities
Washington (Seattle)
+2 other cities
- Spokane
- Tacoma
West Virginia (Charleston)
Wisconsin (Madison)
+1 other city
- Milwaukee
Wyoming (Cheyenne)

Related terms

Other entries in the same area of law, each written from the same primary sources.

« All glossary terms

Part of the LawyerLand plain-English legal glossary. Definitions are written from primary sources - statutes and court rules - and each entry states the authority it rests on, or says plainly when the doctrine is state law with no national rule.

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