Will

What it means

A will names beneficiaries, usually names an executor, and often names a guardian for children. It takes effect only on death and can be changed at any time before then.

A will does not avoid probate. It is an instruction to the probate process, and in most cases it is what gets the process started.

A will controls only property that would otherwise pass through the estate. It does not override a beneficiary designation on a retirement account or a life insurance policy, and it does not override joint ownership.

Why it matters

a frequent misunderstanding after a death is that the will decides everything. It decides what happens to probate assets, and often that is a minority of what a person owned.

The formalities matter more than the wording. A will that says exactly what somebody wanted, signed without the witnesses their state requires, may not be usable.

When you are likely to meet it

• When you find a document in a drawer and need to know whether it is the will.
• When a court asks whether the will has been filed.
• When a beneficiary designation and the will say different things.

How this varies by state

How many witnesses a will needs, whether it may be handwritten, and whether it must be filed with a court after death are all set by state law.

Related terms

• AbatementThe order in which gifts in a will are reduced when the estate cannot pay for everything.
• AdemptionWhat happens when a will leaves a specific item that no longer exists at death: the gift usually simply fails.
• Anti-lapse statuteThe rule that sends a gift to the children of a beneficiary who died before the person who made the will.
• Beneficiary designationA named person on an account or policy who receives it directly on death, without it passing through the will or probate.
• CodicilAn amendment to a will. It changes part of it and leaves the rest standing.
• DeviseA gift made by will — historically of land, and in modern statutes of anything.
• Domestic partnerA legally registered relationship short of marriage. Whether it carries inheritance rights depends entirely on the state.
• Elective shareA surviving spouse's right to claim a minimum portion of the estate, even if the will leaves them less or nothing.
• ExecutorThe person named in a will to carry it out — once a court actually appoints them.
• Governing instrumentWhichever document actually controls an asset — a will, a trust, a beneficiary form, a deed, a partnership agreement.
• Guardian nominationNaming, in a will, who should raise your children — or care for a dependent adult — if you cannot.
• Holographic willA will written entirely in the person's own handwriting. Some states accept one without witnesses; many do not accept one at all.
• IntestateDying without a valid will, so the estate passes by the state's own rules rather than by anybody's wishes.
• Letter of instructionAn informal document left alongside a will, saying the practical things a will has no room for.
• Muniment of titleA procedure in a few states where a will is admitted purely to prove ownership, with no executor appointed and no administration.
• No-contest clauseA clause disinheriting anybody who challenges the will. Whether it works depends on the state.
• Operating agreementThe document setting out how a limited liability company is run — including what happens to a member's interest when they die.
• Pet trustA legal arrangement funding the care of an animal after its owner dies or can no longer look after it.
• Pour-over willA short will used alongside a living trust, directing anything left outside the trust into it.
• Pretermitted heirA child left out of a will who was born or adopted after it was signed, and who may inherit anyway.
• ProbateThe court process that confirms who has authority to deal with what somebody owned when they died.
• Residuary estateWhatever is left after specific gifts, debts, taxes and expenses have been dealt with. Most wills give it away in a single clause.
• Revocable living trustA trust you create during your lifetime, keep control of, and can change or cancel at any time. Property held in it does not go through probate.
• Safe-deposit boxA box rented at a bank. Getting into one after the renter has died is its own procedure, and often a slower one than the family expects.
• Self-proving affidavitA sworn statement attached to a will, signed by the witnesses in front of a notary, so that a court can accept the will without tracking them down.
• Simultaneous deathThe rule deciding who inherits when two people die together and the order cannot be established.
• Slayer ruleA person who unlawfully kills somebody cannot inherit from them.
• Specific bequestA gift in a will of a particular thing — a named account, a ring, a car — rather than a share of what is left.
• Testamentary capacityThe mental capacity required to make a valid will. The standard is lower than the phrase “sound mind” suggests.
• Testamentary trustA trust created by a will, coming into existence only when the person dies.
• TestatorThe person who made the will.
• Will contestA formal challenge to whether a will is valid, brought in the probate court by somebody who would be affected if it were not.
• Witness requirementsWho must watch a document being signed, how many, and whether they may also benefit from it. Getting this wrong can void the whole document.
• Postnuptial agreementThe same kind of agreement, made by a couple who are already married.
• Prenuptial agreementA written agreement signed before a marriage that changes some of the financial and property rules the marriage would otherwise bring with it.
• Pretermitted spouseSomeone who married after their partner made a will, and who some states give a share of the estate anyway.
• Right of survivorshipA form of shared ownership where the survivor automatically takes the whole thing.

Sahvelo guidance that uses this

• The will
• Wills and trusts