The Importance of Having a Will: Legal Basics Explained

Most people know they should have a will, but according to recent studies, two out of three Americans still don’t have one. This isn’t just a statistic. It’s a warning sign that millions of families could face unnecessary legal battles, financial stress, and heartache when a loved one passes away.

Having a will is one of the most important legal decisions you’ll make in your lifetime. It’s not just for the wealthy or elderly. If you own anything of value, have people you care about, or want control over what happens after you’re gone, you need a will. Without one, you’re basically letting the government decide who gets your belongings, who raises your kids, and how your life’s work gets divided up.

The good news? Creating a will doesn’t have to be complicated or expensive. Understanding the legal basics of estate planning can help you protect your family, avoid conflicts, and ensure your wishes are honored. This guide will walk you through everything you need to know about wills, from what they are to why they matter, and how to get started on creating your own estate plan. Let’s break down the essentials so you can make informed decisions about your future and your family’s security.

What Is a Will and Why Does It Matter?

Understanding the Basics of a Last Will and Testament

A last will and testament is a legal document that spells out exactly what you want to happen to your stuff after you die. Think of it as your final set of instructions to the world. It covers who gets your assets, who takes care of your kids if they’re minors, and who’s in charge of making sure everything gets handled properly.

The person who creates the will is called the testator. Once you sign your will in front of witnesses (usually two people), it becomes a legally binding document. But here’s the thing: your will doesn’t do anything while you’re alive. You can change it, update it, or even throw it out and start over whenever you want. It only kicks in after you pass away.

Your will typically names an executor, the person responsible for managing your estate through the probate process. This person pays your final bills, files your last tax return, and distributes your property to your beneficiaries according to your wishes. Without a will, a judge appoints someone to do this job, and it might not be who you would have chosen.

The Legal Weight of Having a Will

Having a will gives you control. Without one, you die intestate, which means state law takes over. Each state has intestate succession laws that determine who inherits your property based on a rigid formula. These laws usually prioritize spouses, children, parents, and siblings, but they don’t account for your actual relationships or preferences.

For example, if you wanted to leave something to a close friend, a stepchild you helped raise, or a charity you support, intestate succession won’t honor those wishes. The court doesn’t care about your intentions. It only follows the state’s rulebook.

What Happens When You Die Without a Will

The Reality of Dying Intestate

Dying without a will means your estate enters a legal process where the probate court makes decisions on your behalf. The court appoints an administrator (often called a personal representative) to handle your affairs. This person might be a family member, but they could also be a stranger appointed by the judge.

Your property distribution follows a strict hierarchy set by your state’s laws. In most states, if you’re married with no kids, your spouse gets everything. If you have a spouse and children, they split your estate. If you have no spouse but have kids, your children divide everything equally. If you have no immediate family, your assets go to more distant relatives like siblings, nieces, nephews, or even cousins you’ve never met.

The worst-case scenario? If the court can’t find any living relatives, your entire estate goes to the state. Everything you worked for your whole life ends up in government coffers.

How Intestate Succession Laws Work

Intestate succession laws vary significantly from state to state, but they generally follow a similar pattern. The probate court identifies your heirs based on their relationship to you. Closer relatives get priority over more distant ones.

Here’s a typical hierarchy:

• Surviving spouse
• Children and grandchildren
• Parents
• Siblings
• Nieces and nephews
• Grandparents
• Aunts, uncles, and cousins

One major problem with intestate succession is timing. If you have minor children, they might receive their inheritance as soon as they turn 18 or 21 (depending on your state). That means an 18-year-old could suddenly get a lump sum of money with zero restrictions or guidance. Most parents would prefer to have more control over when and how their kids receive their inheritance.

Additionally, dying intestate almost always creates more work for your family. The probate process takes longer, costs more, and involves more court supervision when there’s no will to guide the process.

Key Benefits of Having a Will

Protecting Your Minor Children

If you have kids under 18, having a will lets you name a guardian for minor children. This is arguably the most important reason for parents to create a will. You get to choose the person who will raise your children if something happens to you and your spouse.

Without a will, the court decides who gets custody of your kids. Judges typically favor family members, but they don’t know your relationships, your values, or what you want for your children’s upbringing. The court might appoint someone you wouldn’t have chosen, or worse, relatives might fight over custody, putting your kids in the middle of a family battle.

A will also lets you name separate guardians for different roles. You can appoint one person to provide daily care for your children and another to manage the money they inherit. This flexibility ensures your kids are both loved and financially secure.

Avoiding Family Disputes and Conflicts

Family disputes over inheritance can tear relationships apart. When there’s no clear guidance, relatives often argue about who should get what. These conflicts can drag on for years, costing thousands in legal fees and creating permanent rifts.

A well-written will provides clarity. It removes ambiguity about your intentions and reduces the chance of disagreements. When your wishes are documented in a legal document, there’s less room for interpretation or manipulation.

Your will can also address potentially sensitive situations. If you want to disinherit someone or leave unequal shares to your children, you can explain your reasoning in the will. While this doesn’t eliminate all potential conflicts, it does provide context that might help your family understand and accept your decisions.

Choosing Your Executor

Your executor (sometimes called a personal representative) has a big job. They’re responsible for:

• Filing your will with the probate court
• Notifying beneficiaries and creditors
• Paying your debts and final expenses
• Filing your last tax returns
• Distributing your assets according to your will
• Handling any disputes or challenges

Having a will lets you pick someone you trust for this role. You can choose based on their organizational skills, financial knowledge, or simply their reliability. You can even name a professional executor, like a bank or estate attorney, if you prefer.

Without a will, the court appoints someone based on a priority list set by state law. This might be your spouse, an adult child, or another relative, but it might not be the best person for the job.

Speeding Up the Probate Process

Probate is the legal process of settling your estate. It happens whether or not you have a will, but having a will makes it faster and cheaper. When there’s a clear set of instructions, the probate court can process your estate more efficiently.

Dying intestate means the court has to figure out who your heirs are, which takes extra time and money. The court might need to track down distant relatives, verify relationships, and resolve disputes about who should inherit. All of this adds months or even years to the process.

A clear will reduces court involvement, minimizes delays, and helps your family receive their inheritance sooner. This is especially important if your beneficiaries depend on that inheritance for financial support.

Tax Planning and Asset Protection

While most estates don’t owe federal estate taxes (the exemption is over $13 million per person in 2025), tax planning through a will can still save money for larger estates. Your will can include provisions that minimize estate taxes, protect assets from creditors, and ensure your beneficiaries receive as much as possible.

You can also use your will to create a testamentary trust, which holds assets for your beneficiaries under specific conditions. This is useful for protecting inheritances from creditors, divorce settlements, or poor financial decisions. Trusts can also provide for beneficiaries with special needs without disqualifying them from government benefits.

Different Types of Wills You Should Know About

Simple Wills

A simple will is exactly what it sounds like. It’s a straightforward document that states who gets your property and who should be the guardian for your kids. Simple wills work well for people with uncomplicated estates and straightforward wishes.

Most people under 50 with modest assets can use a simple will. As long as you don’t have complex tax concerns or complicated family situations, a simple will provides adequate protection.

Testamentary Trust Wills

A testamentary trust will creates a trust that doesn’t exist until you die. When you pass away, certain assets go into this trust instead of directly to your beneficiaries. A trustee (someone you name) manages these assets according to the rules you set in your will.

This type of will is popular for parents who want to control when their children receive their inheritance. Instead of giving a 19-year-old a lump sum of money, the trust can distribute funds gradually over time or for specific purposes like education, buying a home, or starting a business.

Living Wills and Healthcare Directives

Here’s where terminology gets confusing. A living will isn’t actually a will in the traditional sense. It’s an advance healthcare directive that states your medical treatment preferences if you become incapacitated and can’t communicate.

A living will typically addresses end-of-life decisions, like whether you want life support if you’re in a vegetative state. This document is separate from your last will and testament, but it’s an important part of complete estate planning.

Many people also create a power of attorney for healthcare, which names someone to make medical decisions on your behalf if you can’t make them yourself. Together, these documents ensure your healthcare wishes are honored.

Pour-Over Wills

A pour-over will works with a living trust. It “pours” any assets you own at death (that aren’t already in your trust) into the trust. This ensures that all your property ends up in the trust and gets distributed according to the trust’s terms.

People who use trusts for estate planning often create pour-over wills as a safety net. If you forget to transfer an asset into your trust before you die, the pour-over will catches it.

Understanding Estate Planning Beyond Just Wills

How Wills Fit Into Your Overall Estate Plan

A will is the foundation of estate planning, but it’s not the only tool you need. Complete estate planning includes multiple documents that work together to protect you during your lifetime and after you’re gone.

Your estate plan might include:

• A last will and testament
• A living trust (if appropriate)
• A living will or healthcare directive
• A power of attorney for healthcare decisions
• A power of attorney for financial decisions
• Beneficiary designations for retirement accounts and life insurance

Each document serves a different purpose. Your will handles property that goes through probate. Your healthcare directive addresses medical decisions. Your power of attorney gives someone authority to handle your finances if you’re incapacitated.

Assets That Don’t Go Through Your Will

Not everything you own goes through your will. Many assets transfer directly to named beneficiaries without going through probate. Understanding this distinction is crucial for effective estate planning.

Assets that bypass your will include:

• Life insurance policies with named beneficiaries
• Retirement accounts (401(k)s, IRAs) with designated beneficiaries
• Bank accounts with payable-on-death (POD) designations
• Investment accounts with transfer-on-death (TOD) designations
• Property owned as joint tenants with right of survivorship
• Assets in a living trust

For example, if your will says your sister should get your 401(k), but the beneficiary designation on the account names your brother, your brother gets the money. Beneficiary designations always trump what’s written in your will.

This is why reviewing your beneficiary designations is just as important as updating your will. Life changes like marriage, divorce, or the birth of children should trigger a review of both your will and all your beneficiary designations.

Common Mistakes People Make With Wills

Not Updating Your Will After Major Life Events

Life changes constantly. Getting married, getting divorced, having kids, or losing a loved one should all prompt you to review and update your will. Many people create a will and then forget about it for decades.

An outdated will can cause serious problems. If you get divorced but don’t update your will, your ex-spouse might still inherit your estate. If you have more children after creating your will, they might not be included unless you update it.

Experts recommend reviewing your will every three to five years, even if nothing major has changed. When big life events happen, update your will immediately.

Forgetting About Digital Assets

Modern estate planning must account for digital assets. Your online accounts, social media profiles, digital photos, cryptocurrency, and cloud-stored documents all have value. Without proper planning, your family might not be able to access these assets.

Some states have laws addressing digital assets in estate planning, but many don’t. Including instructions about your digital property in your will (or in a separate document) helps your executor manage these assets after you’re gone.

Not Coordinating Beneficiary Designations

As mentioned earlier, beneficiary designations on accounts override your will. One common mistake is forgetting to update these designations after life changes.

Let’s say you name your spouse as the beneficiary on your life insurance policy. Years later, you divorce and remarry but never change the designation. When you die, your ex-spouse gets the insurance payout, not your current spouse. Your will can’t change this outcome because beneficiary designations aren’t controlled by your will.

Coordinate everything. When you update your will, check all your beneficiary designations too.

How to Create Your Will: Getting Started

Should You Use an Attorney or Do It Yourself?

You have options when creating a will. You can hire an estate planning attorney, use online legal services, or even write a will yourself (though this last option has risks).

For simple estates, online services or DIY approaches might work. Services like LegalZoom offer affordable will templates that guide you through the process. However, if you have a complex family situation, significant assets, or unusual requests, working with an attorney ensures your will is legally sound and accomplishes your goals.

Estate planning attorneys can also help you coordinate all aspects of your estate plan, not just your will. They understand state-specific laws and can identify potential problems you might miss.

What Information You’ll Need

Before creating your will, gather information about:

• Your assets (property, bank accounts, investments, personal belongings)
• Your debts and liabilities
• Full names and contact information for your chosen executor and backup executors
• Names of your beneficiaries
• Full names of guardians for minor children (and backups)
• Specific bequests (who gets what)

Being thorough upfront makes the process smoother. You don’t need exact dollar amounts for every account, but you should have a general understanding of what you own.

Legal Requirements for a Valid Will

Each state has specific requirements for creating a valid will, but most follow similar rules. Generally, you must:

• Be at least 18 years old
• Be of sound mind (understand what you’re doing)
• Create the will voluntarily (no coercion)
• Sign the will in front of witnesses

Most states require two witnesses who are not beneficiaries in your will. Some states also recognize holographic wills (handwritten, unwitnessed wills), but these are risky because courts often challenge their validity.

Notarizing your will isn’t required in most states, but it’s a good idea. A notarized will can speed up the probate process.

Where to Store Your Will

Once you’ve created your will, store the original in a safe place where your executor can find it. Good options include:

• A fireproof safe at home (make sure someone knows the combination)
• Your attorney’s office
• A safe deposit box (but check your state’s laws, as some require court orders to access boxes after death)
• Some courts allow you to file your will for safekeeping

Give copies to your executor and maybe a trusted family member. But remember, courts typically require the original will, so don’t lose it.

The Cost of Not Having a Will

Financial Burden on Your Family

Dying without a will costs your family more money. Probate fees increase when there’s no will because the process takes longer and requires more court involvement. Administrator fees, attorney fees, and court costs all add up.

Your family might also face disputes that lead to litigation. Legal battles over intestate estates can cost tens of thousands of dollars, eating into the inheritance you intended to leave behind.

Emotional Toll and Uncertainty

Beyond the financial costs, dying intestate creates emotional stress for your loved ones. At a time when they’re grieving, they’re forced to navigate complex legal processes without clear guidance about what you wanted.

Family members might argue about who should get what, or they might feel hurt because the intestate succession laws don’t reflect your true relationships. Friends, partners who aren’t legally recognized, and charities you cared about get nothing while distant relatives you barely knew inherit your estate.

Loss of Control Over Your Legacy

Without a will, you have zero say in what happens to everything you’ve built. State law makes all the decisions. You can’t leave a special heirloom to the person you wanted, can’t support the causes you believed in, and can’t express your final wishes.

Your legacy is more than just money and property. It’s the values you lived by and the people you cared about. Having a will lets you shape how you’re remembered and ensure your life’s work supports what mattered most to you.

Estate Planning Resources and Next Steps

If you’re ready to create your will, several resources can help. The American Bar Association’s Section on Real Property, Trust and Estate Law offers extensive information about estate planning and can help you find qualified attorneys in your area.

Consider consulting an estate planning attorney, especially if you have complex needs. A professional can ensure your will is legally valid, coordinates with your other estate planning documents, and actually accomplishes your goals.

Don’t wait until you think you’re old enough or wealthy enough to need a will. If you have anything you want to protect or anyone you care about, you need a will now. Life is unpredictable, and having a plan in place brings peace of mind for you and security for your family.

Conclusion

Having a will isn’t about being morbid or pessimistic. It’s about being responsible and caring. It’s one of the most important things you can do to protect the people you love and ensure your wishes are honored. Without a will, you’re letting state law and strangers make critical decisions about your estate, your children, and your legacy. The probate process becomes more expensive, time-consuming, and stressful for your family. Dying intestate means your hard-earned assets might go to people you wouldn’t have chosen while those you wanted to support get nothing. Creating a last will and testament gives you control, protects your family from conflict, and provides clear instructions during an emotional time. Whether you use an estate planning attorney or an online service, the important thing is to get started. Review your will regularly, keep it updated, and coordinate it with your other estate planning documents. Taking these steps now ensures that when the inevitable happens, your family has one less thing to worry about.