What Is a Testamentary Will?

A testamentary will is a traditional will, aka last will and testament. It is a legal document that is used to transfer an estate to beneficiaries after the death of the person who makes the will, or the testator. Testamentary wills are also used to appoint guardians for minor children, select executors of wills and set up trusts for beneficiaries. Any person over the age of majority and that is of sound mind can legally draft a will.

key takeaways

  • A testamentary will, aka a traditional last will and testament, is a legal document used to transfer a person's assets to beneficiaries after death.
  • To be valid, testamentary wills must contain certain language, indicating who is making the will and revoking all previous wills, and must be signed.
  • Although anyone can write a will, it's usually advisable to have a trust and estates lawyer draft or at least review it, to make sure it is worded correctly, precisely, and in accordance with state laws.

How a Testamentary Will Works

Testamentary wills must contain: clear indication that the testator is the maker of the will; a statement by the testator that they revoke any previous wills or codicils; a statement by the testator that demonstrates that they are of sound and mind and not under duress to dispose of the property; and a signature at the end of the will.

Anything written on a will below the signature is ignored by the probate court.

An executor is selected by the testator to be in charge of the estate upon their death and to execute the terms of the will. The will can also designate the disposition of specific items, properties and assets. Those who receive portions of the estate, property, assets or other, are known as the beneficiaries.

Although anyone can write up a will, it's usually advisable to have a trust and estates lawyer do so, or at least review it, to make sure it is worded correctly, precisely, and in accordance with state laws. Holographic wills, handwritten and testator-signed documents that are not witnessed or notarized, are only acceptable in certain states.

How to Draft a Testamentary Will

The drafting procedure usually goes like this:

  • Decide the property to include. List significant assets, then decide which items should or must be left by other methods, outside the will. If married, each spouse makes a separate will. An individual can leave only the share of assets they own jointly with their spouse (or anyone else).
  • Decide who will inherit property. After making initial choices, choose alternate or contingent beneficiaries in case the first choices don't survive the testator.
  • Choose an executor to handle the estate. Every will must name an executor to carry out the terms of the will. It is best to verify with the executor in advance that they are willing serve.
  • Choose a guardian for any minor children. Decide who would raise them in case the other parent cannot.
  • Choose someone to manage children's property. If leaving property to children or young adults, choose an adult to manage whatever they inherit. To give that person authority over the child's inheritance, make them a property guardian, a property custodian or a trustee.
  • Write the will. Wills can be made with by engaging an attorney or by using one of many private and public online services, many of which are available free of charge.
  • Sign the will in front of witnesses. The completed will must be signed in the presence of at least two witnesses. If using a self-proving affidavit to make things simpler when the will goes through probate court, the signature must be notarized as well.
  • Store the will safely. Advise the executor where the will is located and how to get access to it when the time comes. Only the original, signed will can be filed with a probate court.