Will preparation is a significant step in managing your affairs and ensuring your wishes are honored. Whether you’re just considering writing a will or looking to update an existing one, we’ve got you covered.
In this comprehensive overview, we’ll walk you through the six critical steps before writing your last will to ensure your wishes are clearly outlined and legally binding.
Check out our guide on how to write a will if you’re all set.
Check Your State Requirements
Generally, if you write your will according to the laws of your state, it should be deemed valid in all other states. However, this is not always the case.
For example, a holographic will, written entirely in the handwriting of the testator (owner of the will) and signed by the testator with no witness, is recognized in Texas but not in Florida.
Furthermore, property laws may differ from state to state – especially between “common law” and “community property” states. In a common-law state, one spouse’s property is considered individually owned. However, in a community property state, any asset acquired during a marriage is considered jointly owned, “community property.”
These differences in state property laws may affect the distribution of your assets.
If you’re moving to a new state, review its wills-related laws or consult an estate planning attorney to ensure all parts of your will are accepted and legally valid.
Inventory Your Assets
A complete and thorough inventory of your assets is crucial to ensure that all your possessions are accounted for and allocated as per your wishes.
- Categorize Your Assets: Categorizing assets helps ensure you include all your assets and stay organized. Generally, assets can be categorized into the following categories:
- Financial accounts: bank accounts, investment accounts, cash, stocks, and bonds;
- Real estate: houses, apartments, and land
- Business interests
- Personal property: jewelry, family heirlooms, and household items of sentimental value
- Detailed Descriptions: Describe each asset clearly so that there’s no ambiguity during the asset transfer to beneficiaries. This will aid your executor in the distribution process.
- Check Liabilities: Be aware of any debts or liabilities that might offset your assets. This ensures that beneficiaries don’t inherit unexpected burdens.
- Review Beneficiary Designations: Assets like life insurance policies or investment accounts often bypass your will and go directly to named beneficiaries. Ensure these designations align with your current wishes.
- Exclude Non-Eligible Assets: Some assets, such as joint bank accounts or specific retirement accounts, should be excluded from your will as they have their own transfer protocols.
- Discuss with Family: Conversations can reveal who values certain possessions the most. It’s also an opportunity to explain your decisions, making transitions smoother after your passing.
Pick an Executor
An executor is responsible for ensuring the wishes expressed in your will are carried out after you pass. You should appoint a primary executor and a successor executor as a back-up in case your first choice is unable or unwilling to serve. If you don’t name an executor in your will, the probate court will appoint one on your behalf.
Typically, people nominate trusted individuals, such as close friends or family members, as their executors. You can also choose an institution, such as a bank or trust company, as your executor. Whether it be an individual or an institution, be sure that your executor:
- Is trustworthy;
- Understands how a will operates;
- Knows how to settle an estate;
- Is capable of fulfilling executor duties effectively.
Each state may have restrictions on who can be an executor. All states, however, require the executor to be of sound mind or not incapicitated. Check your state’s laws and regulations to find out who you can and can’t name as your executor.
|State||Age Requirements||Other Requirements||Law|
|Alabama||19 or older||Must not have convictions for serious crimes.
Must be competent and capable of managing the trust, with no impairments due to substance abuse, financial irresponsibility, or mental incapacity.
Non-residents can only serve as executors if they are already managing the same estate in another region and comply with those legal requirements.
|Alaska||19 or older||Must not be deemed unsuitable by the court in formal proceedings.||§ 13.16.065(f)|
|Arizona||18 or older||Must not be considered unsuitable by the court in formal legal proceedings.
Must not be a foreign corporation.
|Arkansas||18 or older||Must not be a convicted and unpardoned felon in the U.S. or its territories.
If a corporation, must be authorized to act as a fiduciary in this state.
Must not be found unsuitable by the court.
Appoint the court clerk or an approved local resident as an agent for service of process and notice regarding estate matters.
Ensure the clerk becomes the agent if the appointed person dies, becomes incompetent, or leaves the county.
Only revoke this agent appointment with the appointment of a qualified substitute.
Ensure the agent promptly sends any process or notice to the personal representative via registered or certified mail.
|California||18 or older||Must not be under conservatorship or otherwise incapable or unfit to execute the duties of the office.
Must not be the previous executor who was removed for valid reasons.
Must not be a non-resident of the United States.
Must not be a surviving business partner of the deceased if an interested party objects to their appointment.
|Prob. Code § § 8402|
|Colorado||21 or older||Must not be deemed unsuitable by the court in formal proceedings.||§ 15-12-203|
|Connecticut||NA||No formal statutory requirements||-|
|Delaware||18 or older||Must not be a person convicted of a crime that disqualifies them from taking an oath.||§ 1508|
|District of Columbia||NA||No formal statutory requirements||-|
|Florida||18 or older||Must not have a felony conviction.
Must not have a conviction for abuse, neglect, or exploitation of an elderly person or a disabled adult.
Must be mentally and physically capable of managing estate matters.
Non-residents must be related by blood, marriage, or adoption to the deceased.
If a minor is named in the will and reaches adulthood during the administration of the estate, they may apply to be the successor executor or administrator if a vacancy arises.
|Georgia||18 or older||Any natural person who is legally competent (sui juris), regardless of citizenship or residency||§ 53-6-1|
|Hawaii||18 or older||Must not be deemed unsuitable by the court in formal proceedings.||§ 560:3-203|
|Idaho||18 or older||Must not be deemed unsuitable by the court in formal proceedings.||§ 15-3-203|
|Illinois||18 or older||Must be a U.S. resident.
Must not be adjudged as a person with a disability as defined in the Act.
Must not be currently incarcerated in state or federal prison.
Must not have been convicted of a felony, except when
(a) Named in the will, with the testator's awareness of their felony,
(b) Not legally prohibited from receiving a share of the estate,
(c) Not convicted of financial exploitation of an elderly person or a person with a disability, or similar crimes, AND
(d) Meets other qualifications outlined above
|755 Ill. Comp. Stat. § 5/6-13|
|Indiana||18 or older||Must not be incapacitated, except if due to physical illness, physical impairment, or physical infirmity.
Must not be a convicted felon under U.S., state, or territory laws.
If a corporation, must be a resident and authorized to act as a fiduciary in this state.Must not be deemed unsuitable by the court.
|Iowa||18 or older||For state residents:
Must be a natural person.
Must not be a person whom the court finds unsuitable for the role.
U.S. or state banks and trust companies are eligible if approved by the superintendent of banking.
Nonresidents who are otherwise qualified under requirements listed above may be appointed, preferably with a resident fiduciary, unless the court allows them to serve alone.
Nonresident banks and trust companies can be appointed if they are authorized to act in a fiduciary capacity in another state and if similar reciprocity is granted to banks and trust companies of Iowa in that state.
|§ 633.63, § 633.64|
|Kansas||18 or older||When the appointed executor is a minor or lacks majority rights at the time of proving the will, temporary administration of the estate may be assigned to someone else. It lasts until the minor reaches legal age or obtains majority rights.
However, if there's another executor willing and able to accept the responsibility, they will manage the estate instead.
Once the minor reaches legal age or gains majority rights, they can join as a co-executor alongside the current executor.
|Kentucky||18 or older (unless a state resident AND specifically allowed in the will)||Can be national banks in Kentucky with fiduciary powers, and state banks or trust companies incorporated in Kentucky and authorized to act as fiduciaries.
If a nonresident of Kentucky, should have a relationship to the decedent, ward, or incompetent person by blood, marriage, or adoption, or be the spouse of such a related person.
|Louisiana||18 or older||Must not be a convicted felon in the U.S. or its territories.
If living outside the state, must have appointed a local agent for legal processes related to the succession and filed this appointment in the succession proceedings.
If a corporation, must be authorized to perform these duties in this state.
Must not be someone proven to have bad moral character in a court hearing.
B. Specific Requirements for Appointment:
Must be either the surviving spouse, an heir, a beneficiary, the legal representative of an heir or beneficiary, a creditor of the deceased or their estate, or someone they nominated.
Can also be a co-owner of immovable property with the deceased.
|CCP § 3097|
|Maine||18 or older||Must not be deemed unsuitable by the court in formal proceedings.||§ 3-203|
|Maryland||18 or older||If the person has voluntarily given up the right to administer by submitting a written declaration of renunciation to the appropriate authority.
If the person has been convicted of a serious crime, unless they can provide a strong, valid reason why they should still be granted this authority.
|Massachusetts||18 or older||Must not be appointed if the court decides in formal proceedings that their appointment would not be in the best interests of the estate||190B, § 3-203|
|Michigan||NA||No formal statutory requirements||§ 700.3203|
|Minnesota||18 or older||Must not be deemed unsuitable by the court in formal proceedings.||§ 524.3-203|
|Mississippi||18 or older||Must not be convicted of any felony.||§ 91-7-65|
|Missouri||18 or older||Must not be full-time judges, clerks, deputy clerks, or division clerks of any court in the state, except for a spouse or a relative within the third degree of relationship.
Must not be a person legally disabled due to a criminal conviction.
Must not be a habitual drunkard.
Must not be corporations, partnerships, or associations not based in Missouri, or any U.S. national banking association with its principal business outside Missouri, with specific exceptions mentioned in section 362.600.
If Person A is the personal representative for Person B, and Person B is the personal representative for Person C, then Person A Must not also be the personal representative for Person C.
|Montana||18 or older||Must not be deemed unsuitable by the court in formal proceedings.||§ 72-3-501|
|Nebraska||19 or older||Must not be deemed unsuitable by the court in formal proceedings.||§ 30-2412|
|Nevada||18 or older||Must not have a felony conviction, unless the court decides this shouldn't disqualify them from being an executor.
If the executor is a bank not authorized in Nevada, it must partner with a bank that is authorized there. An out-of-state bank can appoint a substitute executor without forming this partnership, but the appointed person must be a Nevada resident.
The court can disqualify someone if there's proof they're unfit to be an executor due to conflict of interest, drunkenness, improvidence, lack of integrity or understanding, or other significant reasons.
|New Hampshire||18 or older||Must not be deemed unsuitable by the court in formal proceedings.||§ 553:4|
|New Jersey||NA||No formal statutory requirements||-|
|New Mexico||18 or older||Must not be deemed unsuitable by the court in formal proceedings.||§ 45-3-203|
|New York||18 or older||Must not be:
Someone lacking fiduciary qualifications due to substance abuse, dishonesty, improvidence, lack of understanding, or general unfitness for the role.
A non-resident noncitizen, except when the individual is a foreign guardian serving with one or more co-fiduciaries, where at least one is a resident of this state. The court has discretion in these appointments.
The court may declare ineligible to act as fiduciary if:
The appointed individual cannot read and write in English;
An individual convicted of a felony, particularly if the crime relates to financial mismanagement or breach of fiduciary duty, which may be harmful to the estate's welfare.
|Surr. Ct. Proc. Act § 707|
|North Carolina||18 or older||Must not be convicted felons, under U.S., state, or territory laws, who have not had their citizenship restored.
Must not be nonresidents of the state who haven't appointed a local agent for legal processes related to the estate, or residents who moved out of the state without doing so.
Must not be corporations not authorized to act as a personal representative in this state.
Must not be individuals who have lost their rights as per Chapter 31A.
Anyone deemed unsuitable by the clerk of the superior court.
Persons who have renounced their right to serve, either explicitly or implicitly.
Individuals employed by, acting as agents for, or legally representing property finders involved in agreements under G.S. 116B-78 to locate estate property.
|North Dakota||NA||No formal statutory requirements||-|
|Ohio||18 or older||If the person named as executor in a will is under 18 at the time the will is processed, someone else can temporarily administer the estate. This is called "administration with the will annexed" and it's done during the minor's minority.
If there's another executor named in the will who can and will take on the responsibility, they will manage the estate instead.
|Oklahoma||18 or older when the will is admitted to probate||Must not have a conviction for a serious or notorious crime.
Must not have been judged by the court as incapable of executing the duties of the trust due to drunkenness, financial irresponsibility, lack of understanding, or lack of integrity.
|Oregon||18 or older||Must not be financially incapable.
Must not be lawyers who are currently suspended for misconduct or disbarred.
Must not be lawyers who have resigned from the Oregon State Bar while under investigation for professional misconduct or facing disciplinary proceedings, until they are reinstated.
Must not be licensed funeral service practitioners, unless the deceased person was either a relative of the practitioner or a partner, employee, or employer in the same funeral service practice.
|Pennsylvania||18 or older||Must not be corporations not authorized to act as fiduciaries in the Commonwealth.
Must not be persons, other than those named or described as executors in the will, deemed unfit by the register to manage the estate.
Must not be nominees of any beneficiary, legatee, or interested party who is a citizen or resident of a country outside the U.S. territories, if there's doubt that such persons will actually benefit from their share of the estate.
Must not be individuals currently charged with voluntary manslaughter or homicide (excluding vehicular homicide) in connection with the decedent's death, until the charge is resolved.
|20 Cons. Stat. Ann. § 3156|
|Rhode Island||18 or older||If someone named as an executor in a will is under 18 years old at the time of probate, any other named executors who are eligible will manage the estate.
Once the minor reaches 18 and meets the necessary qualifications, they can join as a co-executor of the will.
If there are no other qualified executors, someone else can be appointed to administer the estate. This arrangement lasts until the minor turns 18 and qualifies to serve as an executor.
|South Carolina||18 or older||Must not be individuals deemed unsuitable by the court in formal proceedings.
Must not be banks or trust companies that are not qualified to conduct trust business or exercise trust powers in this state.
|South Dakota||18 or older||Must not be individuals deemed unsuitable by the court in formal proceedings.
Must not be banks or trust companies that are not qualified to conduct trust business or exercise trust powers in this state.
|Tennessee||18 or older||Must not be someone who has received a sentence of imprisonment
Must not be a judge, unless he or she is a member of your family and representing your estate will not interfere with any judicial duties.
|§ 40-20-115; Sup. Ct. R. 10, RJC 3.8|
|Texas||18 or older||Must not have a felony conviction under U.S. or state laws, unless pardoned or civil rights have been restored.
Must not be nonresidents of the state who:
A. Are either individuals or corporations; and
i. Appointed a resident agent for legal processes related to the estate; or
ii. Filed that appointment with the court.
Must not be corporations not authorized to act as a fiduciary in this state.
Must not be individuals deemed unsuitable by the court.
Exceptions for Felons:
A person with a felony conviction can still serve as an executor if:
(A) They are named as executor in the will,
(B) They are otherwise qualified to be an executor, AND
(C) The court approves their appointment.
|Utah||21 or older||Must not be deemed unsuitable by the court in formal proceedings.||§ 75-3-203|
|Vermont||18 or older||If the executor named in a will is a minor at the time the will is being processed, the responsibility can be given to another executor named in the will who is willing to accept the role and provides the required bond.
If this alternative executor does not accept the appointment or fails to provide the bond, the responsibility may be granted to another suitable person.
Even if the minor named as executor reaches the legal age of majority during the administration of the estate, they Must not replace the current executor or administrator. However, if a vacancy arises during this time, the now-adult former minor can apply to the court to be appointed as the successor executor or administrator.
|14 V.S.A. § 910|
|Virginia||NA||No formal statutory requirements||-|
|Washington||18 or older||Must not be convicted of felonies or crimes involving moral turpitude
Must not be corporations, limited liability companies, or partnerships with exceptions as below:
Trust companies under state laws and national banks can act as personal representatives for estates or incapacitated individuals, and as guardians when appointed by a will. However, these entities Must not qualify under a will they or their employees created, and they Must not benefit financially from attorney fees related to such cases.
Professional corporations, limited liability companies, or partnerships, exclusively composed of attorneys, are eligible to act as personal representatives.
Nonprofit corporations can act as personal representatives if their articles of incorporation or bylaws permit it and they comply with Title 24 RCW regulations.
If a personal representative becomes disqualified due to unsound mind or criminal conviction, the court must revoke their authority.
Nonresidents can be appointed if they designate a local agent or attorney to receive all legal papers and, unless exempt, provide a court-approved bond.
|West Virginia||NA||No formal statutory requirements||-|
|Wisconsin||18 or older||Must not be:
Corporations not authorized to act as fiduciaries in the state.
Nonresidents who haven't appointed a local agent for legal processes and filed this appointment with the court.
Persons deemed unsuitable by the court for valid reasons.
In addition, the court may decide that not being a resident is enough reason to not appoint someone or to remove them from the role.
|Wyoming||18 or older||Non-residents of the state can only serve if a Wyoming resident is appointed as a co-administrator.
The person must not be judged by the court or commissioner as incompetent to carry out the duties of the trust.
Should I pay my executor?
Executors often receive compensation for their services, reflecting the challenges and time commitment of the role, especially during lengthy probate processes. While institutions may charge 2-4% of estate assets, individual executors might charge a set amount, an hourly fee, or a “reasonable” compensation aligned with state guidelines.
Beneficiaries receive assets or possessions as detailed in the will. They are often direct family members, like spouses, children, or siblings. However, you can also name friends, charities, or organizations.
Certain assets may not need to be named in your will to be transferred to your chosen recipients. For instance, assets in payable-on-death (POD) accounts, transfer-on-death (TOD) beneficiaries, and other types of beneficiaries can pass directly to the designated individuals without going through the probate process.
In addition, it’s crucial to consider the age and circumstances of your beneficiaries. If a minor is set to receive assets, they may not have full control, as their guardians will manage the assets until they reach 18. If this is not your desired outcome, setting up a trust may be more appropriate to ensure the assets are managed according to your wishes.
Similarly, if a beneficiary is financially irresponsible, there are specific types of trusts that allow you to distribute assets in a controlled manner, ensuring they are used responsibly and benefit the beneficiary in the long term.
Select a Guardian
If you have minor children, dependents, or even pets, you should appoint one or more guardians to care for them after you pass. A dependent is a child or relative who relies on you as their primary source of income. For example, your dependents may be your 8-year-old daughter or your 80-year-old mother.
Your named guardian will take full legal and physical custody of your children after your death. Therefore, you should consider discussing and notifying them before naming them in your will (though you’re not legally required to).
You should also consider naming back-up legal guardians to ensure there’s a seamless transition in the rare event that your primary choice is unable to assume the responsibility.
When choosing a guardian, consider asking yourself these questions:
- Beyond family ties, does this person share my core values?
- Can they provide a stable and nurturing environment for my dependents?
- Will they respect and uphold my parenting and life principles?
- How well do my dependents know and feel comfortable with this person?
- Do they have the physical and mental capacity to care for young or special-needs dependents?
- Is the individual financially stable and responsible enough to manage additional responsibilities?
Typically, a minor child’s surviving parent deemed competent gets sole custody of the child. However, if both parents pass at the same time, then it’s important that both parents name the same guardian in their wills.
Decide on Witnesses
Witnesses are individuals who attest to the validity of the will by being physically present while observing your signing. They verify that you are of sound mind and are signing the document freely and voluntarily, without any duress or undue influence.
Generally, witnesses must be 18 years old and cannot also be the named beneficiaries in the will. Most states require at least two witnesses sign a will for it to be considered legally binding. Some states, such as Vermont, require three witnesses.
Depending on state laws, witnesses may be required for other estate planning documents — such as a DNR or an advance directive — as well. Consider having these documents signed altogether at once for convenience.
Pick witnesses who are credible, reside nearby and are likely expected to outlive you. Should your will be contested, ideally they are easily accessible in the event they are summoned to testify about the circumstances surrounding your will’s execution.
Ready for a Will
Completing steps to will preparation is a great start to writing a valid will — an essential part of your estate plan.
Be sure to start planning for the future before a major life event happen. If you’re ready to take the next step, our comprehensive guide on how to write a will provides valuable insights and practical advice to help you navigate this important task. Start securing your legacy today.