You can make a legally valid will without hiring a lawyer in the United States, provided the document satisfies the requirements of the state whose law applies. A lawyer is not generally required simply because you want to leave property to family members, choose an executor, or state who should receive your belongings after death.
The greater risk with a do-it-yourself will is not writing down your wishes. It is failing to follow the formal signing, witnessing, and estate-planning rules that determine whether those wishes will actually be honored after your death.
What Makes a Will Legally Valid?
Will requirements differ from state to state, but a traditional written will generally needs several basic elements.
The person making the will, called the testator, usually must:
- Meet the state’s minimum age requirement
- Have sufficient mental capacity
- Intend the document to operate as a will
- Put the will in writing
- Sign it properly
- Have the required witnesses sign it
Many states require two witnesses.
California, for example, generally requires a written will to be signed by the testator and witnessed by at least two people who understand that the document they are signing is the testator’s will.
New York also generally requires two witnesses and imposes detailed requirements concerning how the testator acknowledges the will and how the witnesses sign it.
Texas generally requires two qualifying witnesses for an ordinary written will, although special rules apply to handwritten wills.
Because these formalities can differ significantly, using the correct rules for your state is essential.
Can You Write Your Own Will at Home?
You can write your own will at home if you follow the applicable state law.
A basic will may include provisions identifying:
- Your full legal name
- Your spouse and children
- The person who will serve as executor
- Who receives your home
- Who receives bank accounts or personal property
- How remaining property should be divided
- Alternative beneficiaries if someone dies before you
- A guardian preference for minor children
The document should also revoke earlier wills if that is your intention.
Clarity matters. A statement such as “I want my family to divide everything fairly” may create much more uncertainty than clearly identifying beneficiaries and percentages.
Can You Use an Online Will Template?
An online template can work for a simple estate if the document is designed for your state and executed correctly.
The danger comes from assuming that every online form is legally valid everywhere.
A template may fail to account for:
- State witness requirements
- Community-property rules
- Spousal inheritance rights
- Children from previous relationships
- Trust provisions
- Business ownership
- Estate tax issues
- Real estate in another state
- Beneficiary designations
- Special-needs beneficiaries
A technically valid will can also produce a poor result if it does not coordinate with the rest of your estate.
For example, a will saying that your daughter receives your life insurance proceeds usually cannot override a valid beneficiary designation naming someone else.
Does a Will Have to Be Notarized?
A traditional will generally does not have to be notarized merely to be valid in many states.
Witness signatures are usually more important than notarization.
A notary may nevertheless be used for a self-proving affidavit. This additional document can make probate easier because the witnesses swear in advance that the will was properly executed.
After the testator dies, the probate court may then be able to accept the affidavit rather than requiring witnesses to appear and testify about the signing.
Notarizing a document does not automatically turn an improperly executed will into a valid one.
Who Can Be a Witness to a Will?
Witness qualifications vary by state, but using two competent adults who are not receiving anything under the will is generally the safer approach.
Some states technically permit an interested beneficiary to serve as a witness, but doing so can create problems.
California, for example, does not automatically invalidate a will merely because a beneficiary witnessed it. However, certain gifts to an interested witness may become subject to a presumption that the gift resulted from improper influence unless sufficient disinterested witnesses were also present.
The simplest practice is therefore to choose witnesses who:
- Are adults
- Understand that they are witnessing a will
- Are mentally competent
- Are not beneficiaries
- Are not married to beneficiaries when avoidable
Witnesses generally do not need to know how much money you have or what each beneficiary receives.
Can You Handwrite a Will?
Some states recognize a handwritten will, commonly called a holographic will.
The rules differ significantly.
California recognizes a holographic will when the signature and material provisions are in the testator’s handwriting. Witnesses are generally not required for a qualifying holographic will.
Texas also recognizes a will written entirely in the testator’s handwriting without requiring subscribing witnesses.
Other states either impose different requirements or do not recognize holographic wills in the same way.
A handwritten will can therefore be valid in one state and problematic in another.
Even where holographic wills are permitted, unclear language frequently creates probate disputes.
Can You Type Your Own Will?
You can type your own will, but a typed will usually must follow the normal execution requirements of the state.
Unlike qualifying holographic wills, simply typing and signing a document alone may not be enough.
If your state requires two witnesses and you sign the will without them, the document may fail even though every word accurately reflects your wishes.
This is one of the most common DIY estate-planning mistakes.
What Should You Put in a Simple Will?
A straightforward will commonly includes several sections.
Identification
The document should clearly identify you and state that it is your last will and testament.
Revocation of Previous Wills
Many wills expressly revoke previous wills and codicils to reduce confusion.
Executor
Choose the person who will administer your estate.
It is also sensible to name an alternate executor in case your first choice dies, declines, or cannot serve.
Gifts to Beneficiaries
Clearly identify who receives specific property or percentages of your estate.
Avoid ambiguous descriptions when possible.
Residual Estate
A residuary clause explains who receives property that was not specifically addressed elsewhere.
Without one, some assets may pass under state intestacy law even though you left a will.
Guardian for Minor Children
Parents often use a will to nominate someone they would want to care for minor children if both parents die.
The court ultimately considers the child’s welfare, but the parent’s nomination can carry substantial importance.
What Property Does a Will Not Control?
One of the biggest misconceptions is that a will controls everything you own.
Many assets pass outside probate.
Examples may include:
- Life insurance with a named beneficiary
- Retirement accounts with beneficiary designations
- Payable-on-death bank accounts
- Transfer-on-death accounts
- Property held in certain trusts
- Property owned jointly with survivorship rights
The beneficiary designation or ownership arrangement can override what your will says.
For example, if your will leaves everything to your children but your 401(k) validly names your spouse as beneficiary, the retirement account will generally follow the beneficiary designation rather than the will.
Can You Leave Your Spouse Out of Your Will?
Attempting to disinherit a spouse is considerably more complicated than simply omitting the spouse’s name.
Many states provide surviving spouses with statutory inheritance protections.
Depending on the state, a spouse may have rights involving:
- An elective share
- Community property
- Homestead rights
- Family allowances
- Exempt property
A will stating “I leave my spouse nothing” may therefore not eliminate all of the spouse’s legal rights.
This is one situation where professional estate-planning advice can be particularly valuable.
Can You Disinherit a Child?
Many states give parents considerably more freedom to disinherit adult children than spouses.
However, accidentally omitting a child can create problems.
Some states have laws protecting children who were unintentionally left out, particularly children born after the will was executed.
If you deliberately intend to exclude a child, the will should generally make that intention clear rather than simply failing to mention the child.
Do not use a symbolic “$1 gift” merely because you have heard that it is required. That is generally unnecessary and may create additional administrative complications.
What Are the Biggest DIY Will Mistakes?
Problems commonly arise when people:
- Sign without enough witnesses
- Use beneficiaries as witnesses
- Forget to sign the document
- Modify the will by writing on it later
- Use outdated online forms
- Forget a residuary clause
- Fail to update beneficiary designations
- Give away property they no longer own
- Create conflicting wills
- Store the original where nobody can find it
Another common mistake is destroying the original without understanding the potential legal consequences.
The original signed will is often extremely important during probate.
Where Should You Keep Your Will?
Keep the original in a secure location where your executor can find it after your death.
Possible locations include:
- A fire-resistant home safe
- Your lawyer’s document storage
- Another secure estate-planning location
- A court or government will-deposit service where available
Be cautious about placing the only original inside a bank safe-deposit box if nobody else will have legal access after your death.
Tell your executor where the original is stored.
When Is Hiring a Lawyer Particularly Worthwhile?
A DIY will becomes less attractive when your estate involves:
- A business
- Multiple homes
- Property in several states
- A blended family
- Significant investments
- A child with special needs
- A potential family dispute
- A desire to disinherit a spouse or child
- Estate tax concerns
- Trusts
- Complicated beneficiary arrangements
A lawyer can also help coordinate your will with powers of attorney, health-care documents, trusts, beneficiary forms, and property ownership.
Frequently Asked Questions
Q1. Can I write my will on a piece of paper and sign it?
A handwritten will may be valid in states that recognize holographic wills if all statutory requirements are satisfied. In other situations, signing a piece of paper without witnesses may not create a valid will.
Q2. Can my children witness my will?
Using beneficiaries as witnesses can create unnecessary problems even in states where an interested witness does not automatically invalidate the will. Using two independent adults who receive nothing under the will is generally safer.
Q3. Can I change my will myself later?
You can generally replace your will or make a properly executed amendment called a codicil. Simply crossing out sentences and handwriting new provisions onto an existing signed will can create uncertainty and should be avoided.
Q4. What happens if I die without a valid will?
Your property that does not otherwise pass through beneficiary designations, trusts, or survivorship arrangements generally passes under your state’s intestate succession laws. Those laws determine which relatives inherit and in what proportions rather than allowing the family to decide informally.
