Understanding Wills: The Cornerstone of Every Estate Plan

Overview

A well-crafted estate plan always includes a will. Even when trusts, beneficiary designations, or joint ownership play a primary role, the will remains the legal foundation that ensures a person’s final wishes are honored. For estate planning attorneys—and for anyone seeking to understand how estate plans actually work—grasping the purpose, structure, and legal requirements of wills is essential.

This article provides a practical, high-level guide to wills: what they do, how they work, and why they remain indispensable in nearly every estate plan.

Why Wills Matter in Estate Planning

A will is the legal document through which a person (the testator) directs how their property will be distributed at death. While many assets pass outside of probate through trusts, survivorship rights, or beneficiary designations, a will serves as the ultimate safety net.

Even individuals who believe all their assets pass outside probate should have a will. Unexpected assets—such as tax refunds, legal settlements, or improperly titled accounts—often surface after death. Without a will, those assets are distributed under state intestacy laws, which may conflict with the testator’s intent.

In short:Every estate plan needs a will, even if it plays a supporting role.

State Law Governs Every Will

Estate planning law is highly jurisdiction-specific. While many states have adopted portions of the Uniform Probate Code (UPC), no two states are identical in how they regulate wills.

As a result:

• A will’s validity, interpretation, and effect are governed by state law.

• Attorneys must always consult applicable state statutes and case law.

• National “templates” should be treated as starting points—not final solutions.

The UPC provides helpful guidance, but state-specific deviations are common and significant.

Basic Legal Requirements for a Valid Will

To be legally valid, a will must satisfy several foundational requirements under state law. While details vary by jurisdiction, most states require:

1. Testamentary CapacityThe testator must be legally capable of making a will at the time it is executed.

2. Proper ExecutionThe will must be signed and witnessed (or, in limited states, notarized) according to statutory formalities.

3. Recognized FormThe will must be of a type permitted by state law (for example, formal, holographic, or electronic).

Meeting these requirements helps ensure the will reflects the testator’s true intent and reduces the likelihood of a successful will contest.

Testamentary Capacity: A Critical Safeguard

Testamentary capacity focuses on the testator’s mental state at the moment the will is signed. Under the UPC and most state laws, the testator must:

• Be at least 18 years old.

• Be of sound mind.

Courts generally look at whether the testator understood:

• The nature of making a will.

• The property they owned.

• The people who would naturally inherit from them.

For elderly or infirm clients, documenting capacity is especially important. Attorneys often protect the estate plan by memorializing the questions asked, the client’s responses, and the circumstances of execution.

Executing a Will Properly

Most states require wills to be:

• In writing.

• Signed by the testator (or by another person at the testator’s direction).

• Witnessed by at least two competent individuals.

Some states also permit self-proving affidavits, which allow the will to be admitted to probate without later locating witnesses—an important efficiency when years have passed.

Careful execution minimizes future disputes and ensures smoother probate administration.

Avoiding Fraud and Execution Challenges

To reduce allegations of fraud or undue influence, best practices often include:

• Careful supervision of the signing ceremony.

• Independent, disinterested witnesses.

• Clear documentation when a testator cannot sign personally.

• Retaining detailed execution records in the attorney’s file.

These steps are particularly important when capacity, physical limitations, or family conflict may later become issues.

What a Will Controls—and What It Does Not

A will governs probate assets—property owned by the testator at death that does not pass automatically by law or contract.

A will does not control assets that:

• Are held in trust.

• Pass by joint survivorship.

• Have beneficiary designations (such as retirement accounts or life insurance).

This is why proper titling and beneficiary coordination are essential. When a will conflicts with a beneficiary designation, the beneficiary designation controls.

The Will as a Planning Tool

When used as the primary estate planning vehicle, a will can:

• Name executors, guardians, and trustees.

• Create testamentary trusts.

• Make specific, general, and residuary gifts.

• Address contingencies such as predeceased beneficiaries.

• Include protective clauses, such as no-contest provisions.

Even when a revocable trust is the centerpiece of the plan, a pour-over will ensures that overlooked or newly acquired assets are transferred to the trust at death.

Wills and Life Changes

Life events often affect estate plans. Marriage, divorce, the birth or adoption of children, and significant asset changes can all alter the legal effect of an existing will. Many states have statutes that partially override outdated wills to protect spouses or children.

As a result, estate plans should be reviewed regularly, particularly after major life transitions.

When There Is No Will

If a person dies without a valid will—or if the will fails to dispose of all assets—state intestacy laws control distribution. These statutes follow rigid formulas that rarely align with a person’s nuanced wishes.

Avoiding intestacy is one of the strongest reasons every adult should have a will.

Final Thoughts

A will is far more than a formality. It is a carefully structured legal instrument that:

• Expresses intent.

• Protects beneficiaries.

• Reduces conflict.

• Provides clarity at a time of loss.

Whether serving as the centerpiece of an estate plan or as a critical backstop, the will remains indispensable. Thoughtful drafting, careful execution, and ongoing review ensure that it fulfills its purpose: honoring a person’s final wishes with precision and dignity.