Last Will & Testament

What a will does

A last will and testament directs how your probate property is distributed at death, names an executor (also called a personal representative) to administer the estate, and lets you nominate guardians for minor children. Without one, state intestacy law decides all three.

The executor's job is administrative: file the will with the probate court, inventory assets, pay valid debts and taxes, and distribute what remains to the beneficiaries named in the will.

What makes a will valid

Formal requirements are set by state statute. The common pattern — codified in Delaware at 12 Del. C. ch. 13, and similar in most states — is that the testator must be at least 18 years old and of sound mind, and the will must be in writing, signed by the testator (or by someone at their direction and in their presence), and attested by two credible witnesses.

Some states additionally recognize handwritten (holographic) wills without witnesses; many, including Delaware, do not. A "self-proving" affidavit signed before a notary is optional in most states but speeds up probate because witnesses don't have to be located later.

What a will does not control

A will only reaches assets that go through probate. Assets with their own transfer mechanism pass outside the will entirely: retirement accounts and life insurance with beneficiary designations, payable-on-death (POD) bank accounts, transfer-on-death (TOD) securities registrations, property held in joint tenancy with right of survivorship, and anything titled to a trust.

This is the most common estate-planning failure mode: a will that says one thing while an outdated 401(k) beneficiary form says another. The beneficiary form wins. The IRS notes that plan participants' designated beneficiaries receive those assets under the plan's terms, regardless of the will.

Dying without a will (intestacy)

If you die intestate, your state's intestacy statute distributes probate property along a fixed family hierarchy — typically spouse and children first, then parents and siblings. The court appoints an administrator, and a judge (not you) selects guardians for minor children. Unmarried partners, stepchildren, and charities receive nothing under intestacy.

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