Important notice Will and estate law is governed by each state individually. The considerations below apply generally across the United States, but the law in your specific state may differ. We strongly recommend consulting a licensed estate planning attorney if any of the situations described below apply to you.
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What property can be gifted in a Will?
You may gift any property that you own outright or hold a beneficial interest in at the time of your death — personal property such as vehicles, jewelry, bank accounts, stocks, and investments, as well as real estate held solely in your name.
You cannot gift property held in joint tenancy. When one joint tenant dies, ownership automatically passes to the surviving joint tenant regardless of your Will. This commonly applies to homes owned jointly by spouses.
Community Property states
Nine states are Community Property states: Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin. In these states, each spouse automatically owns one half of all income earned and property acquired during the marriage. On the death of one spouse, the deceased's half passes according to their Will — but the surviving spouse retains their half regardless. If you live in a Community Property state, obtain legal advice before completing your Will Kit.
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Formal requirements of a Will
In writing. A Will must be a written document.
Signed by you. You must sign your Will at or near the end of the document.
Two adult witnesses. Your signature must be made in the presence of at least two adult witnesses present at the same time. Vermont requires three.
Witnesses must also sign. Both witnesses must sign the Will in your presence.
Witnesses should not be beneficiaries. A gift to a witness-beneficiary (or their spouse) may be voided in many states. Use independent witnesses.
Age of majority. You must be of legal age (generally 18) in your state.
Mental capacity. You must understand what a Will is, what property you own, who your natural heirs are, and what the Will does.
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How to revoke or change a Will
Marriage may automatically revoke a prior Will in many states. Divorce typically cancels provisions benefiting a former spouse. The cleanest way to change your Will is to sign a new one that expressly revokes all prior Wills. You may also sign a Codicil — a witnessed amendment to your existing Will — for minor changes. Never handwrite changes directly on a signed Will.
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What can affect validity?
A court may invalidate a Will if the testator lacked mental capacity, did not genuinely intend the gifts described, signed under duress or undue influence, or if the Will was signed under suspicious circumstances. If there is any doubt about your capacity, consider having your doctor witness the signing.
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The executor
Your executor gathers and inventories estate assets, pays all debts and taxes, distributes assets to beneficiaries, and files final tax returns. Choose someone you trust completely who is organized and capable. For complex estates, consider a professional executor.
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Guardians
If you have minor children, naming a guardian is critical. Without one, a court decides. Choose someone who shares your values, is willing to take on the responsibility, can treat your children equally alongside their own, and ideally lives in your community. Always name a backup guardian and speak with your chosen guardian first.
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The residue of your estate
The residue is everything remaining after all debts, expenses, taxes, and specific gifts have been satisfied. It is typically the largest portion of your estate. Make sure to account for costs before estimating how much your beneficiaries will receive from the residue.
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Specific gifts and cash gifts
When leaving specific items, describe them precisely to avoid disputes. If you sell or give away a specifically bequeathed item during your lifetime, the gift fails — the intended recipient receives nothing in its place unless your Will says otherwise. Fixed cash amounts do not adjust for inflation, so keep this in mind for gifts intended far in the future.
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Claims against your estate
Spouses: Most states give a surviving spouse the right to claim an "elective share" regardless of what your Will says. Children: Some states require you to specifically name a child you are intentionally excluding, or the court may assume the omission was accidental. Children born after you sign your Will are typically entitled to a share by law. Creditors: Your estate must pay all valid debts before assets are distributed to beneficiaries.
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Legal definitions
Bequest / Legacy
A gift of personal property made through a Will.
Codicil
A legally executed amendment to an existing Will, signed and witnessed with the same formality as the original.
Community Property
A system in nine US states where most assets acquired during marriage are owned equally by both spouses.
Executor / Personal Representative
The person named in your Will to administer your estate — gathering assets, paying debts, and distributing property.
Intestate
Dying without a valid Will. State law determines how assets are distributed — which may not reflect your wishes.
Joint Tenancy
Co-ownership where, on death, the deceased's share automatically passes to the surviving co-owner(s) — regardless of the Will.
Probate
The court-supervised process of proving a Will's validity, paying debts, and distributing assets. It is public, can be costly, and time-consuming.
Residue / Residuary Estate
Everything remaining after all debts, expenses, taxes, and specific gifts have been satisfied.
Testator
The person who creates and signs a Will.
Undue Influence
Pressure or manipulation that overrides the testator's free will, causing them to make a Will that does not reflect their genuine wishes.
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Examples
Dying without a WillDavid dies without a Will, leaving a spouse and two adult children from a prior marriage. State law — not David's wishes — determines who inherits. His children from a prior marriage may receive more than David intended. A Will would have let him specify exactly how he wanted his estate divided.
Joint tenancySandra's Will leaves her home to her daughter from a prior relationship. But Sandra and her husband own the home as joint tenants — so it automatically passes to her husband when she dies, regardless of her Will.
Specific bequest failsThomas's Will leaves his 2019 Ford Mustang to his nephew. He later sells it. When Thomas dies, his nephew receives nothing — the specific bequest failed because the exact item no longer exists in the estate.
Community PropertyMichael lives in California and his Will leaves everything to his brother. However, his wife automatically owns half of all community property regardless of the Will. His brother will receive far less than Michael intended.
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Caution zone — consult an attorney if any of these apply
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You want to leave your spouse less than state law would entitle them to claim.
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You want to intentionally disinherit a child.
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You are planning to separate or divorce, or have recently done so.
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You recently married — in many states, marriage automatically revokes a prior Will.
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You live in a Community Property state and are unsure what you own outright.
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You have children from a prior relationship alongside children from your current relationship.
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You have a dependent with special needs who relies on government assistance.
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Your estate may be large enough to trigger federal or state estate taxes.
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You own real estate in more than one state — a Revocable Living Trust may be more appropriate.
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You own a business or have shareholders' agreements or other contractual obligations.
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You have any doubt about your mental capacity at the time of signing.
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You feel pressured by anyone to complete your Will in a way that does not reflect your true wishes.
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After completing your Will Kit, you do not fully understand its contents. Do not sign a Will you do not understand.
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