Many families avoid talking about wills because it means confronting mortality. But the consequences of dying without a valid will—or with an outdated one—can be severe: family conflict, unintended heirs, lengthy court proceedings, and assets distributed against your parent's wishes.
Why a Will Matters
What a Will Does
- Distributes assets: Specifies who receives what property
- Names an executor: Designates who manages the estate
- Names guardians: Important if minor dependents are involved
- Expresses wishes: Can include funeral preferences and special instructions
- Minimizes conflict: Clear instructions reduce family disputes
Without a Will (Intestacy)
When someone dies without a will, state law determines who inherits:
- Assets go to nearest relatives in order set by law (spouse, children, parents, siblings)
- No provision for friends, charities, or stepchildren who aren't legally adopted
- Court appoints administrator (may not be who your parent would choose)
- Process takes longer and costs more
- May create unintended results (estranged relatives inheriting, for example)
What Makes a Will Valid
Requirements vary by state, but generally include:
Basic Requirements
- Testamentary capacity: Person must be of "sound mind"—understanding what a will is, what they own, and who their heirs are
- Legal age: Usually 18 or older
- Writing: Most states require the will to be written (typed or handwritten)
- Signature: Must be signed by the person making the will (testator)
- Witnesses: Most states require 2-3 adult witnesses who are not beneficiaries
- Voluntary: Must be made without undue influence or coercion
Special Types of Wills
Holographic wills: Handwritten wills without witnesses. Valid in about half of states, but easier to contest.
Self-proving wills: Include a notarized affidavit from witnesses, simplifying probate.
Sound Mind Matters
If your parent has dementia or cognitive decline, they may lack the mental capacity to create or change a will. A will made without testamentary capacity can be contested and invalidated. Get professional assessment if there's any question about capacity.
What to Include in a Will
Essential Elements
- Identification: Full legal name, address, statement that this is their will
- Revocation clause: States that all previous wills are revoked
- Executor nomination: Who will manage the estate (and alternates)
- Beneficiaries: Who receives what, including percentages or specific items
- Residuary clause: Who gets anything not specifically mentioned
- Signature and date
- Witness signatures
Additional Provisions to Consider
- Specific bequests (particular items to particular people)
- Charitable gifts
- Contingent beneficiaries (if primary beneficiary dies first)
- Trust provisions for minor or special needs beneficiaries
- Instructions for pets
- Funeral or burial wishes (though a separate letter is often better)
Choosing an Executor
The executor (also called personal representative) manages the estate after death:
Executor Responsibilities
- File the will with probate court
- Notify beneficiaries and creditors
- Inventory and protect assets
- Pay debts, taxes, and expenses
- Distribute assets to beneficiaries
- File final tax returns
- Close the estate
Choosing the Right Person
Consider someone who is:
- Trustworthy and responsible
- Organized and detail-oriented
- Able to manage finances
- Available to devote time to the process
- Willing to serve
- Likely to outlive your parent
Options include:
- Adult child or other family member
- Trusted friend
- Professional (attorney, accountant, bank trust department)
- Co-executors (can share duties but must agree on decisions)
When to Update a Will
Review every 3-5 years and after major life events:
- Death of spouse, beneficiary, or executor
- Marriage, divorce, or remarriage
- Birth or adoption of grandchildren
- Significant change in assets (inheritance, property sale)
- Moving to a different state
- Change in relationship with beneficiary
- Change in tax laws affecting estate
- Executor unable or unwilling to serve
How to Update
Codicil: A legal amendment to an existing will. Good for minor changes. Must be executed with same formalities as the will.
New will: Better for substantial changes. Should include language revoking all previous wills.
Ways to Create a Will
Online Will Services
Cost: $50-$200
Best for: Simple estates, straightforward wishes
Pros: Affordable, convenient, legally valid if done correctly
Cons: No personalized advice, may miss important issues, not ideal for complex situations
Attorney-Drafted Will
Cost: $300-$1,000+ (varies by location and complexity)
Best for: Complex estates, blended families, business owners, special needs beneficiaries
Pros: Personalized advice, addresses state-specific requirements, catches potential problems
Cons: Higher cost, requires appointments
When to Use an Attorney
Consider an attorney if your parent has: a blended family, business interests, property in multiple states, beneficiaries with special needs, significant assets ($500K+), complex family dynamics, or any concerns about the will being contested.
Common Will Mistakes to Avoid
Mistakes That Can Invalidate a Will
- Not meeting state signing/witness requirements
- Making changes by crossing out or writing in (instead of proper codicil)
- Witnesses who are beneficiaries
- Creating the will under undue influence or when lacking capacity
Mistakes That Cause Problems
- Not updating after major life changes
- Forgetting about assets (retirement accounts, life insurance) that pass outside the will
- Vague language that creates confusion
- No alternate beneficiaries
- Not telling the executor where to find the will
- Storing the only copy in a safe deposit box no one can access
Wills and Probate
Probate is the legal process of validating a will and administering an estate.
What Goes Through Probate
- Assets titled solely in the deceased's name
- Assets without designated beneficiaries
What Typically Avoids Probate
- Joint accounts with right of survivorship
- Assets in a living trust
- Life insurance with named beneficiary
- Retirement accounts with named beneficiary
- POD (payable on death) and TOD (transfer on death) accounts
Probate Process
- File will with probate court
- Court validates will and appoints executor
- Executor inventories assets
- Notice to creditors (usually must wait for claim period)
- Pay debts, taxes, and expenses
- Distribute remaining assets to beneficiaries
- File final accounting and close estate
Timeline: 6 months to 2+ years depending on complexity and whether contested.
Storing the Will Safely
- Home safe: Accessible but may be lost in disaster
- Safe deposit box: Secure but may be inaccessible after death (check state rules)
- Attorney's office: Safe and accessible
- State registry: Some states allow will registration
Important: Tell the executor where the will is stored. Keep a copy at home and give one to the executor.
Common Will Mistakes to Avoid
Even well-intentioned estate planning can go wrong. Here are the most common mistakes families make with wills:
Not Having a Will at All
About 60% of American adults don't have a will. When someone dies intestate (without a will), state law determines who inherits—and those laws don't consider your parent's actual wishes, relationships, or family dynamics. The result can be estranged relatives inheriting, stepchildren getting nothing, and lengthy court proceedings to sort it all out.
Having an Outdated Will
A will from 20 years ago may name a deceased spouse as executor, include provisions for children who are now adults, ignore grandchildren born after it was created, or fail to address assets acquired since then. Life changes—wills should change too. Major life events that should trigger a will review: marriage, divorce, death of spouse or beneficiary, birth of children or grandchildren, significant changes in assets, and moving to a new state.
Failing to Coordinate With Beneficiary Designations
Many people don't realize that retirement accounts, life insurance, and POD/TOD accounts pass directly to named beneficiaries, regardless of what the will says. If your parent's will leaves everything equally to three children but the IRA names only one child, that's not equal distribution. Review beneficiary designations alongside the will to ensure they work together.
DIY Mistakes
Online will services and do-it-yourself templates can work for simple situations, but mistakes are common: invalid witnessing, ambiguous language, missing required provisions, and failure to comply with state-specific requirements. A will that doesn't meet your state's legal requirements may be invalid. For anything beyond a very simple estate, professional guidance is worth the cost.
Naming the Wrong Executor
The executor has significant responsibilities: gathering assets, paying debts and taxes, dealing with beneficiaries, potentially managing property or investments during the estate administration process. Naming someone who is unwilling, incapable, too far away, or likely to cause family conflict creates problems. Choose someone responsible, organized, and able to handle potential family dynamics.
Vague or Conflicting Language
Ambiguous language invites legal challenges. "My jewelry should be divided fairly among my daughters" sounds reasonable but provides no guidance—who decides what's "fair"? Be specific: name exact items and recipients, or establish a clear process (such as taking turns choosing items in a specific order).
Talking to Your Parent About Their Will
Many adult children find it difficult to raise the topic of estate planning with their parents. Here's how to approach the conversation:
Frame It as Protection, Not Prediction
Emphasize that a will protects the family and ensures your parent's wishes are honored. It's not about expecting anything bad to happen—it's about being prepared. Most parents want to protect their children from conflict and legal headaches, and a clear will does exactly that.
Lead With Practical Concerns
Ask practical questions: "Do you have a will?" "Where is it kept?" "Who is named as executor?" "When was it last updated?" These concrete questions are easier to answer than emotional ones about wishes and legacy.
Share Your Own Experience
If you've created your own will, share that experience. If you've seen families struggle without clear estate documents, mention those situations (without being morbid). Personal stories help normalize the conversation.
Offer to Help
Many seniors procrastinate on will updates because the process seems daunting. Offer to research attorneys, schedule appointments, or help gather the information needed. Making it easier increases the chance it actually gets done.
Respect Their Privacy
Your parent doesn't owe you information about their estate plan. The goal is to ensure they have a current will and that someone knows where to find it—not necessarily to know all the details. Some parents prefer to keep their plans private, and that's their right.
What Happens After Death
Understanding the process that follows death can help families prepare and know what to expect.
Locating the Will
The original will must be found. Check likely locations: home safe, filing cabinet, safe deposit box (note: these may be sealed upon death in some states), attorney's office, or state will registry if your state has one. Having told family members where to find it avoids a frantic search during an already difficult time.
Probate Process
Most estates go through probate—the court-supervised process of validating the will, paying debts and taxes, and distributing assets. The executor files the will with the court, gets appointed as personal representative, notifies creditors and beneficiaries, inventories assets, pays valid debts and taxes, and distributes remaining assets according to the will. Probate typically takes 6 months to 2 years depending on estate complexity and state procedures.
Executor Responsibilities
Being an executor is significant work. Responsibilities include: notifying all relevant parties of the death, gathering and protecting assets, paying ongoing bills during estate administration, filing tax returns (final income tax, potentially estate tax), communicating with beneficiaries, potentially managing property or investments, maintaining detailed records, and distributing assets according to the will. Executors can hire attorneys, accountants, and other professionals to help—estate funds typically pay these costs.
Contests and Disputes
Will contests are relatively rare but do happen. Common grounds include: lack of testamentary capacity (the person wasn't of sound mind), undue influence (someone pressured them), improper execution (didn't meet legal requirements), or fraud. Having the will professionally prepared and witnessed, maintaining documentation of the person's mental state, and communicating with family members during life all help reduce the risk of successful challenges.
Frequently Asked Questions
The person must be of sound mind and legal age, the will must be written and signed, and typically witnessed by 2-3 adults who aren't beneficiaries. Requirements vary by state.
Review every 3-5 years and update after major life events like death of spouse, divorce, birth of grandchildren, or significant changes in assets.
The estate passes according to state intestacy laws. The court appoints an administrator, the process takes longer, costs more, and the deceased's wishes may not be honored.
Not always. Simple estates can use online services. An attorney is advisable for large estates, blended families, business ownership, or special needs beneficiaries.
A will takes effect at death and goes through probate. A trust can take effect immediately, avoid probate, and provide ongoing asset management. Many people use both.