Testamentary Will: What it is, How it Works, FAQ

What Is a Testamentary Will?

A testamentary will is a traditional will, aka last will and testament. It is a legal document that is used to transfer holdings in an estate to other people or organizations after the death of the person who makes the will, officially known as the testator. Testamentary wills are also used to appoint guardians for minor children, name the executors who carry out the will's directions, and set up trusts for beneficiaries. Any person over the age of majority who is of sound mind can legally draft a will.

How a Testamentary Will Works

Testamentary wills must contain: a clear indication that the testator is the maker of the will; a statement by the testator that they revoke any previous wills or codicils; a statement by the testator that demonstrates that they are of sound and mind and not under duress to dispose of the property; and a signature at the end of the will.

An executor is selected by the testator to be in charge of the estate upon their death and to execute the terms of the will. The will can also designate the disposition of specific items, properties, and assets. Those who receive portions of the estate—property, assets, or other bequests—are known as the beneficiaries.

Although anyone can write up a will, it's usually advisable to have a trust and estates lawyer do so, or at least review it, to make sure it is worded correctly, precisely, and in accordance with state laws. Holographic wills, handwritten and testator-signed documents that are not witnessed or notarized, are only acceptable in certain states.

How to Draft a Testamentary Will

The drafting procedure usually goes like this:

• Decide the property to include. List significant assets, then decide which items should or must be left by other methods, outside the will. An individual can leave only the share of assets they own jointly with their spouse (or anyone else). Spouses should make separate wills.
• Decide who will inherit property. After making initial choices, choose alternate or contingent beneficiaries in case the first choices don't survive the testator.
• Choose an executor to handle the estate. Every will must name an executor to carry out the terms of the will. It is best to verify with the executor in advance that they are willing to serve.
• Choose a guardian for any minor children—the person would raise them in case the other parent cannot, or if there is no other parent.
• Choose an adult to manage children's property (whatever they own or inherit). To give that person authority over the child's inheritance, make them a property guardian, a property custodian, or a trustee.
• Write the will. Wills can be made by engaging an attorney or by using one of many private and public online services, many of which are available free of charge.
• Sign the will in front of witnesses. The completed will must be signed in the presence of at least two witnesses. If using a self-proving affidavit to make things simpler when the will goes through probate court, the signature must be notarized as well.
• Store the will safely. Advise the executor where the will is located and how to get access to it when the time comes. Only the original, signed will can be filed with a probate court.

What Happens If You Don't Have a Will

If you don't have a will when you die—or if your original will can't be found—you are said to have died intestate. An estate can also be in intestacy if the will you have is considered invalid for any reason (improperly drawn up, for example) and no previous will exists.

Since there is no will to dictate how your assets are to be distributed, the local probate court (or surrogate's court, as it's called in some jurisdictions) has to take over the dispersal of your estate. It operates based on the laws or rules of intestacy in your state—that is, the state in which you legally resided at the time of your death.

First, the court appoints an estate administrator, based on statutory preferences; usually, the pecking order is the deceased’s spouse, then adult children, then parents. Like a will’s executor, the administrator is in charge of divvying up and delivering the assets to the heirs, who are called “distributees.”

However, the administrator actually has little discretion or decision-making to do: They must distribute the assets as dictated by the intestacy rules of the local jurisdiction. The exact terms vary from state to state, especially in community property states, but generally run along the same lines.

Typically, a surviving spouse receives 50% of the estate, and the other 50% is divided equally among children. Further down the line come the deceased’s siblings, parents, and other relatives. Generally, only legal partners, spouses, and blood kin can be designated distributees; the intestacy laws rarely provide for anyone else.

It's important to note that dying intestate applies only to portions of the estate that would've been distributed or bequeathed via a will. Assets, financial accounts, and property owned jointly with right of survivorship or designated "transfer on death" automatically go to the surviving joint owner or transferee. Similarly, life insurance policies and retirement accounts, like IRAs and 401(k) plans, go directly to named beneficiaries, bypassing probate (in fact, these designations would overrule any bequest in a will, anyway). Nor are any assets placed in a legal trust affected by intestacy, as their distribution is dictated by the trust's parameters—not a will.

Last Will and Testament vs. Trust

Wills and trusts are both important estate planning tools. Aside from bequeathing assets, however, the two legal documents really have little in common.

First of all, a will only takes effect after your death. It dictates the direction and dispersal of your property, assets, and belongings after you've gone, but it also deals with other aspects of your estate, your person (funeral and burial), and your survivors. For example, a will might name a guardian for your minor children or indicate how and where you wish them to be educated.

From bequeathing a silver teaspoon to establishing a multi-generational trust, a will deals with post-mortem matters great and small. It is administered by an executor or personal representative (as they're now more commonly called), once it has been filed and approved by a probate court.

In contrast, a trust can be established and operate during your lifetime. It is a legal entity that is given ownership of specific assets—equities, properties, insurance policies—you own. When you set up a trust, you designate a beneficiary to receive these assets, or proceeds from them, and a timetable for their distribution (usually, after your death). You also appoint a trustee to administer these actions.

Unlike a will, which can have authority over anything solely in your name, a trust only covers property placed into it.

A trust can be revocable or irrevocable. Either way, once the assets go into the trust, they no longer technically belong to you (even though you still may maintain some control over them—dictate what stocks to buy for a brokerage account, say). The trust owns them, and they are no longer part of your estate. So they don't have to go through probate to be bequeathed after you die.

That is really the bottom-line difference between these two methods of transferring wealth and property: A will deals with belongings in your estate, and a trust is a way of spinning off holdings from your estate.

Last Will and Testament FAQs

What Is the Difference Between a Living Will and a Last Will and Testament?

A living will, also known as an advance directive, goes into effect while you are alive, but unable to communicate your wishes—usually because of illness or injury. It is a legal document that specifies the type of medical treatment and care you wish to receive, or wish withheld; and what sort of measures should be taken to maintain your life. A living will can also indicate whether you wish to donate organs and tissues after death.

A last will and testament goes into effect after you die. It specifies what happens to your estate (money, property, belongings, and investments) post-mortem: Which individuals or entities receive which bequests. The will defines assets, names beneficiaries, assign guardians for your minor children, and appoints an executor to carry out your wishes.

How Much Does a Last Will and Testament Cost?

The costs of a last will and testament can vary greatly. If you do it all yourself—write it, obtain the witnesses, and have it notarized—it could cost next to nothing.

But DIY totally isn't recommended, since it's important that the will be worded precisely and drawn up in accordance with the laws of your state. There are many online legal services that help you compose a will using state-specific boilerplate forms. Some are free (at least technically; often there are hidden charges) but the better-reputed ones, like LegalZoom—some of whose plans include online attorney consults—are less than $100 per document.

If you use an attorney, the cost will likely reflect their hourly rate. Depending on the complexity of your affairs and the will, the end price can be anywhere from a few hundreds to a few thousands of dollars. Many trust and estate lawyers charge a flat fee to write a will, though. The low end for a simple lawyer-drafted will is around $300, but a price of closer to $1,000 is more common.

How Do You Void a Last Will and Testament?

You can void a will—officially known as revoking it—in a couple of different ways.

The simplest way is to deliberately physically destroy the document: tear, burn, deface, or shred it. This obliteration should be done by the will's creator or at least in their presence to be considered legal. Make sure you do this to the original, "wet signature" document and, to be safe, any copies as well. (Even in this digital age, probate courts tend to be reluctant to accept copies of wills; still, they might do so on occasion.)

A more efficient way (assuming one still wants a will) is to write and execute a new one—and include the language "hereby revoking all previous wills, testaments, and codicils made by me." Such revocation clauses are standard in most wills.

Finally, you can take a middle course by making changes to parts of an existing will. The newly amended document, now called a “codicil," can change key aspects of an existing will, rendering it null and void in part or in its entirety. Often, codicils require witnesses and notarization too, to be fully legal and effective.

The Bottom Line

A will is a written document expressing a deceased person's wishes, from naming guardians of minor children to bequeathing objects and cash assets to friends, relatives, or charities. A will becomes active only after one's death, and must go through a legal process called probate, where an authorized court administrator examines it.

If you have minor children, you should absolutely make a will to name guardianship. But, as a matter of good estate planning, everyone should have a will, creating one sooner rather than later. Because without one, your state's legal statutes dictate what becomes of your belongings.