How Wills Work: Drafting, Executing, and Enforcing Your Last Testament

67% of Americans Have No Will—Including Most Parents of Minor Children

A 2024 Caring.com survey found that only 32% of Americans have a will or living trust. Among adults with children under 18, the number with valid estate planning documents was only marginally higher. The consequences of dying without a will—called dying intestate—are not that your wishes are ignored. It's worse: the state decides how your assets are distributed, who raises your children, and who administers your estate, following a rigid formula written for the average family, not yours.

What a Will Actually Does

A last will and testament is a legal document that directs how your property is distributed after death. Specifically, a will can:

• Name beneficiaries for property subject to probate
• Appoint a guardian for minor children
• Name an executor (personal representative) to administer the estate
• Establish testamentary trusts for minor or special needs beneficiaries
• Specify funeral and burial instructions
• Forgive debts owed by others to you

A will cannot override beneficiary designations on retirement accounts, life insurance policies, or jointly titled property—these pass outside the will by operation of law. This is among the most common estate planning mistakes: having a will that says one thing while retirement accounts have outdated beneficiary designations saying something else.

Requirements for a Valid Will

Holographic Wills

About 26 states allow holographic wills—handwritten, unwitnessed wills in the testator's own handwriting. These are valid in California, Texas, Virginia, and other states but are not recognized in New York, Florida, or Georgia. While holographic wills don't require witnesses, they create higher risks of challenges and ambiguity.

Dying Intestate: The State's Default Plan

Every state has intestate succession laws—a distribution formula that applies when someone dies without a valid will. The typical order of inheritance:

1. Surviving spouse
2. Children (split equally)
3. Parents (if no children)
4. Siblings (if no parents)
5. More distant relatives in succession

If no relatives are found, the estate escheats to the state government. Unmarried partners—regardless of relationship length—receive nothing under intestate succession in most states. A valid will changes this entirely.

The Role of the Executor

The executor (or personal representative) is the person named in the will to administer the estate. Duties include locating and filing the will with probate court, inventorying assets, notifying creditors, paying valid debts, filing final tax returns, and distributing remaining assets to beneficiaries. This process can take six months to several years depending on estate complexity.

Naming a trustworthy, organized person as executor matters enormously. Executors can be compensated from the estate—typically 2%–4% of the estate value—though many family-member executors waive the fee.

Should You Use an Attorney or DIY?

Updating Your Will

A will should be reviewed and potentially updated after every major life event: marriage, divorce, birth of a child, death of a named beneficiary, significant change in assets, or relocation to a different state. Marriage automatically revokes prior wills in some states; divorce revokes provisions for the ex-spouse in most states. Reviewing beneficiary designations on financial accounts and insurance policies simultaneously ensures everything aligns.

Disclaimer: Estate laws vary significantly by state. This article is for informational purposes only and does not constitute legal advice. Consult a licensed estate planning attorney for guidance specific to your situation.