Last Will and Testament: Frequently Asked Questions

The basic answer to "what is a will?" is pretty simple: You get to lay out your last wishes, like who gets your stuff if you were to pass away, and who should take care of your children in your absence.

When you're ready to write your last will and testament, you'll get to set out your wishes, and if you've done everything right, then they'll be followed when you're gone.

But many people have more questions than that, ranging from high-level explanations to niggly details. So we collected the most common FAQs about wills, and put them here to help you sort out what you need to know about your own situation.

What's the Difference: Will vs. Last Will and Testament?

The term “will,” as we use it, is interchangeable with “last will and testament.” Both refer to a document that determines what happens to your property if you die. It lays out whom your belongings should go to, how and who’s in charge of making that happen.

Making a will also gives you the opportunity to name an executor (the person responsible for distributing your assets) and a legal guardian for your children.

Will vs. Living Will: Are They Different?

There is a major difference between this and a living will. 

A living will, which is also sometimes known as a healthcare directive, lets your loved ones know about any health care decisions that you’d like to be made while you’re alive, in the event that you're unable to communicate these wishes when the time comes.

Ugh. Do I Really Need a Will?

Short answer? Probably, yes.

Having a will clears a lot of red tape for your friends and family. It doesn't even have to take that long. Fabric's researchers found that more than 75 percent of customers created a will online in under ten minutes.

Here are six reasons you might need a will.

How Much Does It Cost to Make a Will?

If you were to work with an estate planning attorney, your will could cost anywhere from a few hundred to a few thousand dollars. Generally speaking, lawyers often charge a few hundred dollars per hour.

Of course, it's free if you choose to make your will with Fabric. You aren't required to apply for or purchase life insurance (though we do sell term life insurance, too) and you can access a copy of your will online through our mobile app.

Where Should I Keep My Will?

It's important to store your will somewhere safe, where your survivors know how to find it. That could be a safe, or a high shelf in a cabinet, or the county clerk's office. The choice is yours, as long as you give where to store your will some careful thought.

How Should I Choose My Beneficiary?

You can name (or exclude) whomever you want and divide your estate however works for you. 

Close relatives like a spouse and kids are often the top choices for beneficiaries. You don’t need to stop at close relatives, though. You can name friends, a business partner or even charitable organizations as the beneficiary of your will. 

If you have questions about writing your will, it’s a good idea to speak to an estate planning attorney, especially if you’d like to set up complex instructions. If you don’t have the time or money to meet with a lawyer right now, however, Fabric’s simple online will can help you document your wishes for free, in minutes. Fabric will also provide steps on how to make the document legally binding.

Check out our guide to naming your will beneficiary. 

What Are the Executor’s Responsibilities?

Being named an executor of a will is a big honor, but it’s also a big responsibility. If you’ve been named the executor of an estate, duties include making sure all of your loved one’s belongings are collected and distributed in accordance with their wishes. 

We’ve laid out seven steps to executing an estate.

Isn’t It Awkward to Ask Someone to Take My Kids if I Die?

There’s really no wrong way to ask someone to serve as a legal guardian for your kids. Most people will be flattered. What bigger compliment could you give someone than entrusting him or her with your child’s future?

Do I Need a Will if I Have a Payable-on-Death (POD) Account?

Most people would benefit from both a payable on death designation and a will. POD accounts are better for quick cash for people handling your final affairs or counting on money for bills, while your will lets you get into clearer detail about the more nuanced aspects of settling your estate.

Dive deeper into how you should think about a POD account vs. a will.

What Is Probate, Exactly? And Should I Try to Avoid It?

Probate is the legal process of administering a person’s estate after their death. If you have a last will and testament, the probate process will involve proving that your will is legally valid, executing your instructions and paying applicable taxes.

Having a clearly written will is one way to make the probate process easier on your loved ones. After all, your will doesn’t only specify who should inherit what. It also designates who you’d like to take care of your kids if both parents were to pass away, plus the executor who should fulfill the instructions in your will.

Learn more about the probate process.

What’s the Difference Between a Will and Power of Attorney?

A will explains how you’d like to pass on your assets. Power of attorney documents, meanwhile, let someone make legal and financial decisions for you if you can’t. We’ve done the research to help you understand the different kinds of power of attorney, and which may make sense for your situation.

You might choose to put a power of attorney in place for yourself, just in case. Additionally, if you have aging parents or other relatives, you might encourage them to set up power of attorney while they’re still able.

Read our rundown of the different types of power of attorney.

Can I Have Both a Will and a Trust Fund?

The short answer is yes. A trust in no way replaces a will. A will is the only way you can name an executor and legal guardians for your children. Without a will, the state where you live will divide up your property and assets as it sees fit.

That said, having a will and a trust can help ensure that your money not only goes to whom you choose, but also in the manner you choose. Putting money in a trust lets you pass property to someone in a structured way, where you can impose rules. For example, you might say that your beneficiary can’t use these funds to pay off debt. Or, you might impose rules on how old the beneficiary needs to be before she gains control over the money.

Here’s the scoop on trust funds.

What if I Have a Blended Family?

Creating a robust estate plan helps to ensure your wishes are carried out and that all parties get their fair share. While every blended family has its own unique circumstances, there are three main areas to think about:

• Legal guardianship

• Passing on assets to minor children

• Dividing your estate among family members

In cases like these, you’ll almost certainly want to speak to a qualified attorney to help you grapple with all the nuances. 

We explored how blended families should think about estate planning.

Can I Disinherit Someone?

It's up to you who to include in your will, and who not to include. That said, there may be some legal limitations in place to protect spouses and minor children. If your goal is to disinherit one of your kids or to give to them unequally, make sure that intention is very clear in your will.

What Are Some Things That Could Invalidate My Will?

The probate process is where a judge certifies that your will is valid. A few possible reasons why your will could be deemed invalid might include things like:

• Mental incompetence: To be mentally competent, you'll generally need to understand what it is you own, who your relatives are, what your relationship is with the beneficiaries you've chosen, what your last will and testament actually says and what that means. In some states, there may be additional rules around how to define "mental competence," such as excluding people who are experiencing hallucinations or delusions. A lawyer can help you understand the guidelines in your state.

• Previous wills: If you have another version of your will circulating out there, there could be some confusion about which one is valid. Once you've updated one version of your will, it's often suggested that you destroy all other copies of your outdated will to make your intentions clear.

• Improper witnesses: In most places, you need two witnesses over age 18. They, too, need to be mentally competent and observe you signing your will.

This is not an exhaustive list and there may be other factors considered by the court. For greater nuance on your own situation, we recommend you speak to an attorney.

What Should I Never Put in My Will?

Wills cover lots of ground, but they shouldn't be kitchen-sink documents, either.

Last requests such as funeral plans shouldn't be in your actual last will and testament, though you can often include an additional document stating your wishes. With Fabric's online will, you can choose various preferences such as whether you'd like to be buried or cremated, and we'll produce a supplemental document to help make the emotional burden easier on your family by telling them what you want.

You shouldn't list life insurance policies in your will, either. That's because life insurance benefits don't go through probate, since they're a contract directly between you and the insurer. If you have a term life insurance policy and pass away during the term of your coverage, the insurer will pay a "death benefit" to the beneficiary you've chosen. With whole life insurance, your insurance never expires, as long as you're current on your monthly premium payments. Either way, the proceeds skip the probate process and aren't included in your will. (Here's more on term life insurance vs. whole life.)

Ditto on retirement funds: Those also skip probate and therefore should generally not be included in your will.

It's generally best not to list jointly held property in your individual will, either, as rights of survivorship mean that your co-owner will simply continue to own the asset after your passing. For example, if you co-own a house, your co-owner would still own it even after your passing.

You can’t leave property or gifts to pets, and you can’t designate your assets for illegal purposes. You also need to make sure your gifts, if they include conditions, are legal; marriage, divorce, or a change in religion can’t be provisions on legal wills. 

You also shouldn’t use a will to orchestrate care for a special needs person — instead, you’ll need a separate document, such as a special needs trust.

Can I Make a Will Without a Lawyer?

If you have a really simple financial situation—for example, you have few assets, don’t have children and are planning on leaving everything to one sibling—you may be OK creating a will on your own. Of course, there are many reasons to consult a lawyer, too.

You might find an attorney helpful if you're too busy to stay on top of updating your documents regularly, or if you've got minor children, a large estate or complicated requests.

Note that Fabric isn’t an attorney and doesn’t provide legal advice. Here's more on when you do (and don't) need a lawyer to write your will.

Which State Governs My Will?

For the most part, your last will and testament is governed by the state where you live. So if your primary address is in Ohio, that would typically be the state that executes your will. If you're not sure about which state you "reside" in, ask yourself: Where do I pay personal income tax?

Check out our rundown of how to make your will legally binding in each state. For more specific questions, reach out to an estate attorney.

Can I Just Write a Will and Get It Notarized?

If your will is written in a way that's legally sound and follows the laws of your state, you pretty much can. This assumes that you've followed relevant rules to make your will legally binding, too. Notarization is required in some cases, and not required in others (though it's a good practice and generally recommended).

Here's more info on "self-proving affidavits" and notarization.

What Is the Best Way to Write a Will?

That'll depend on your needs and preferences. If you have relatively simple instructions to pass down, you may be able to draft your will online through a service like Fabric's free online will. If your needs are more complex, you might want to speak to an attorney to help you craft the best document for your needs.

Is There a Way to Pass Down Intangible Values, Rather Than Just Material Possessions?

Yes, actually. One way to do this is through a legacy letter, also known as an ethical will. You know how a last will and testament passes down your material belongings? An ethical will conveys the ethics and values you hope to pass down.

This often includes advice, treasured memories and reminiscences about important life events. It can contain your ruminations on regrets, forgiveness, love, mentors, cultural beliefs, morals and ethics, ancestry and how you would like to be remembered.

Can I Do My Own Last Will and Testament?

Anyone can make their own will and testament, but it won’t be useful unless it’s official. Make sure to follow your state’s requirements. If you don’t, the court could find it invalid, and your assets could get distributed differently than you planned. If your wishes are complicated or you have a large estate, you may want to talk to a lawyer.

How Do I Write a Will Without a Lawyer?

You can use online tools like Fabric to create your own last will and testament, which will help make sure the language is clear and the document is legally valid. Ensure you follow your state’s guidelines, and when you’ve printed, signed (and potentially notarized) your will, be sure to store it in a safe place.

Fabric exists to help young families master their money. Our articles abide by strict editorial standards.

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