These days there are so many companies online selling will forms and templates, or claiming to offer free simple will packages, it’s hard to tell them apart. If you’ve spent any time browsing your options, you’ve probably seen some version of this marketing copy:
Our team of experienced attorneys have designed our Last Will form to meet the specific laws and requirements of each U.S. state.
This kind of marketing copy seems straightforward enough, but it’s not telling the whole story. It would lead you to believe that meeting your state’s minimum legal requirements for a valid will is enough to make your will adequate to accomplish your goals. That is simply not the case. Making your will valid is merely the first step toward having a will that will actually do what you want it to do after you’re gone.
Let’s look a little closer at what I mean by “valid”: A valid will is one that meets the minimum requirements under the laws in your state so that a judge will agree that it is, in fact, a will.1 This is obviously very important, but it’s just one small step in the months-long process of enforcing a will. The next question to ask — and the one that you won’t find in all those companies’ marketing copy — is this: Will your will actually do what you want it to do?
No. “No” is the likely answer if you made your will without understanding all of the other laws that apply to wills where you live, not just the laws for making a will valid. Consider these examples for wills made under Washington State’s laws:
- Will your gift stating that your family home will stay in your family for several more generations be honored? Not if the gift violates the rule against perpetuities.
- Will your gift of all of your wedding china to your children be honored? Not entirely if the china is community property and your spouse does not also give his or her share of the china to the children.
- Will your decision to disinherit one of your children be effective? Not if the child is deemed an omitted child or is able to participate in a claim for a family support award.
- Will your gift of your car to your friend be honored? Not if you later replaced your car with a new one and wrote the gift as a specific gift instead of a general gift.
- Will your chosen guardian take custody of your minor children when you die? Not if your children still have a surviving parent whose parental rights have not been terminated in a separate court proceeding.
- Will your gift of some money to your sister be distributed with the residue of your estate if your sister does not survive you? Not if the anti-lapse statute applies.
- Will your gifts reach their intended beneficiaries if your estate has significant debt? Not if the gifts abate or your estate is insolvent.
- Will your will pass seamlessly through the probate process without a will contest? Probably not if you have named beneficiaries in your will who won’t actually get the gift you listed for them because of some law or other that you didn’t know about.
These examples all involve laws in Washington State that have nothing to do with the validity of a will, and everything to do with its effect. These examples show that a will might accomplish something very different than what the will appears to say. If you make a will without understanding these (and many other) laws, you run the very real risk that your will will not do what you want it to do after you’re gone.
We wrote our free simple will-drafting instructions to include a thorough explanation of these laws because you should have a will that will actually do what you want it to do.
- In most states, the minimum requirements usually involve being competent and signing the will in front of two witnesses. For example, see the minimum requirements for a valid will in Washington State. ↩