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What does a will usually contain?

While a last will and testament can be as simple as a few sentences stating your intent, there are some traditional provisions that tend to make the probate process smoother and eliminate any ambiguity with regard to family members. Some typical provisions of a last will and testament include:

(1) The name of the testator (your name) and sound mind statement. The primary requirement that courts evaluate when determining if a will is valid is whether or not the testator was of sound mind. This generally means that you are able to understand that you are creating your will and deciding what will happen to your property. The simplest way to do this is to begin the will with a self testifying statement such as, “I, (state your name), a resident of (City and State), declare this to be my will.”

(2) The name of the testator's spouse and date of marriage, if any, and the name of all of the testator's children (and how foster and stepchildren are to be treated), if any. Be sure and use full legal names to avoid any ambiguity. You can also then mention that from that point forward you will refer to each as “wife” and “children.”

(3) The revocation of all prior wills and codicils. If you have ever written a prior will, then you must always state, “I revoke all prior wills and codicils.” Otherwise, if a prior will turns up, the court will honor it over your new will.

(4) The distribution of special gifts, if any, and instructions for the remainder of the estate after payment of just debts, taxes, and expenses incurred in administration of the estate.

(5) The nomination of the personal representative and alternates. Ideally, you should have two alternatives, one of which is typically either an attorney or bank. Also list all the powers that are to be given the personal representative, which are often defined as those provided under state statute.

(6) The designation of a guardian for minor children, alternate guardians if the original guardian is unable to serve, and a fiduciary guardian if different from the caregiver.

(7) A waiver of the surety bond requirement. This ensures that your executor does not have to pay for a bond in order to execute your will.

This list is not entirely complete, and the provisions you may or may not have in your own will depend upon your individual situation. If you have any questions about how to draft your last will and testament or need help with the drafting, contact an estate planning attorney for assistance.

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