The Basics of Wills

You can't take it with you when you die, as the old saying goes, but you can decide how your possessions are handled by drafting a will. Wills are legally binding documents that allow you (the testator) to decide how your belongings and assets (collectively called an estate) should be divided once you've passed on. In addition to clarifying your intent with respect to your material possessions, wills also allow you to express personal sentiments toward loved ones. For instance, many wills include personal notes to survivors along with the gifting of sentimental items.

From a practical perspective, writing a will helps survivors efficiently distribute your property while avoiding the costly and time-consuming probate process (see What Happens If You Die Without a Will?). Additionally, wills are an opportunity for testators to make contributions to charities or provide other types of gifts important to one's legacy. In addition to distributing your possessions, a will allows you to designate a guardian for your minor children.

See FindLaw's extensive Wills section for additional articles and resources about making a valid will, changing an existing will, and related matters.

A Brief History of Wills

The use of wills to designate property to family and loved ones after one's death began in Ancient Greece. Male citizens of Athens over the age of 20 who didn't have male children generally were permitted to write wills. Ancient Roman law further developed the use of wills, but required them to be made in public in the presence of seven witnesses. Much later, wills became part of English common law and influenced laws that are still with us today.

Wills and State Laws

Statutes governing the terms of a valid will are fairly similar from state to state. Every state requires the testator to be above the age of majority (18 in most states) and of sound mind. Additionally, every state requires a specified number of competent witnesses (usually at least two) to sign the will in the presence of the testator.

State laws tend to vary on whether nuncupative (oral) or holographic (handwritten) wills are allowed. In Massachusetts, for example, oral wills are only valid if spoken by U.S. soldiers in actual service (such as in battle) or mariners at sea. In Colorado, handwritten wills are valid as long as the signature and material provisions of the will are in the testator's own handwriting.

If you move to another state after signing a valid will, chances are it will be considered valid in your new state as well. But not always. For example, if you move from a state that does not recognize community property to one that does, your existing will may not reflect your new state's categorization of property.

When You Die Without a Will

If you die without a valid will -- or "intestate," in legal terms -- your estate will be dealt with in probate court. This process is governed by state laws that determine how property is distributed upon your death. Without input from the testator, though, property is uniformly dispersed to next-of-kin. If you intend to leave property to anyone who is not a relative, you will need to write a will.

Contact an estate planning attorney in your state if you have additional questions about wills.