What a Will Does

Contents

1. The decisions a will records
2. What passes outside it
3. Form, witnesses and the rules of each state
4. How many people have one

Brent O’Mara works with business owners and multigenerational families, and because that work often reaches past the portfolio, the oldest document in estate planning sits near all of it. Clark Gable had one. As Marketplace recounted in a 2008 interview with the author of a Kiplinger estate planning guide, the actor’s will left everything to his spouse and stated that he had no children, and he never changed it after she became pregnant.⁴ Had the couple died together, a court rather than the parents would have chosen who raised the child and who managed the money. The episode is remembered because it shows the two things a will is for: saying who receives property, and saying who looks after people and property when the person who wrote it cannot.

A will is, in the plain definition the same guide gave, a set of instructions about what should happen to a person’s assets, instructions that are given force through the probate system after death.⁵ Nothing in it operates while the writer is alive, which separates it from a power of attorney or a living trust, and which explains why a will cannot be the place for funeral wishes: those decisions arrive within hours of a death, long before any will has been read or filed.⁵

The decisions a will records

The core of any will is a list of beneficiaries and what each receives. A Kiplinger glossary separates two words that are often used interchangeably: a beneficiary is anyone chosen to receive a bequest, while an heir is someone entitled by state law to inherit when there is no valid will.⁷ After specific gifts come the residue, the property left after debts, taxes, expenses and named bequests have been paid out, and a will that lacks a residuary clause leaves that remainder to be divided by intestacy rules.⁷ Many wills also use per stirpes language, Latin for “by branch,” so that if an adult child dies first, that child’s share passes down to his or her own children rather than lapsing.⁷

Figure

What a will settles

1. 01
   BeneficiariesWho receives each specific gift of property or money, and who takes the residue left after debts, taxes and expenses.
2. 02
   ExecutorThe person who gathers the assets, pays what is owed and distributes what remains, called a personal representative in some states.
3. 03
   GuardianWho raises minor children, and separately who manages any property left to them until they are adults.
4. 04
   ContingenciesWhat happens if a named beneficiary dies first, often handled with per stirpes language that follows the family tree.

The second decision is the executor, the person who will gather the assets, pay debts and distribute what remains. The Kiplinger author told Marketplace that choosing this person is among the most important parts of the document, since the executor must locate everything the estate owns, and he cited the case of a woman whose expensive jewelry was found only by accident, wrapped in tissue inside a spindle of toilet paper, because her will gave no hint of where it was.⁵ The American Bar Association recommends naming a secondary or co executor should the first choice be unable to act, a point Money reported in its guide to writing a will without a lawyer.¹ The executor’s own tasks are long enough to deserve their own entry, in the duties of an executor.

The third decision concerns children. A will is the only document in which a parent can name a guardian for minor children, and the University of Illinois Extension notes that this alone is a reason to have one even when every account already carries a beneficiary form.⁶ There are in fact two guardianships, one of the child and one of the child’s property, and they need not be the same person.⁴ A Kansas City Star column adds that children probably cannot manage an inheritance themselves, so a property guardian or custodian with written instructions is what allows a safe handover.³ The same column lists other things people forget to address: online accounts, debts that others owe the estate, and who will take the pets.³

What passes outside it

The most common misunderstanding about a will is that it disposes of everything. It does not. The Illinois Extension draws the distinction between the total estate, everything a person owns, and the probate estate, the smaller subset that a will actually controls.⁶ Property titled to a trust goes where the trust says. Retirement plans and life insurance go to whoever is named on the form. Payable on death and transfer on death designations work the same way, and anything owned jointly with right of survivorship belongs to the surviving owner the moment the first owner dies.⁶ A will only governs what is left after all of those mechanisms have done their work.

A Boston law professor quoted by Money put it bluntly: many people write a will believing it covers the whole estate, and it does not, because anything in joint name or payable to a named beneficiary is beyond its reach.¹ Fortune quoted a planner who tries to dispel the idea that the will is the central estate document, since a large share of most people’s assets can pass by designation without one.⁸ The relationship between the two runs through beneficiary designations, which a will cannot override, and through a revocable living trust, which can carry instructions a will cannot.

Figure

Inside and outside the will

	Passes under the will	Passes outside the will
Accounts in one name only	Yes, through probate	No
Retirement plans and life insurance	Only if no beneficiary is named	Yes, by the form on file
Jointly owned home or account	No	Yes, to the surviving owner
Property titled to a trust	No	Yes, under the trust terms
Payable or transfer on death accounts	No	Yes, to the named person

None of that makes the will unnecessary. The Extension author calls it a safety net: some assets cannot be transferred by the other tools, a person may forget to retitle something or name someone, a named beneficiary may die first or decline the gift.⁶ Whatever falls through lands in the probate estate, and a will is what directs it.

Form, witnesses and the rules of each state

A will is a creature of state law, and the rules differ. Money’s guide reported that handwritten wills may need no witnesses but are binding in only about half the states, that a newly typed will needs two witnesses’ signatures wherever it is made, and that an older will executed in a state that once required three witnesses stays subject to the old rule until it is updated.¹ A will can be handwritten; a videotaped one is not recognized.⁵

Changes are made by codicil, a formally executed amendment that modifies part of a will without rewriting it, typically after a birth, death, marriage, divorce or a move to another state.⁷ The need to keep a will current is the lesson of the Gable story, and it applies at every age. Fortune’s reporting on younger adults argued that estate planning is not only for the wealthy or old, and that it makes sense once a person is working or holds assets in his or her own name.⁸

What happens without a will is also set by the state. The Kansas City Star explained that dying without one is called dying intestate, and that assets which would normally pass under a will are instead distributed under the state’s intestate succession rules, which in some states leave a surviving spouse as little as a third of the estate.² That is rarely what people would have chosen, and the process in this state has its own entry in probate in Nebraska. Which documents a given person needs, and how they fit together, depends on individual circumstances, so the drafting itself is a task for qualified professionals in law, tax and finance.

How many people have one

Nobody is sure, because the surveys disagree. Money reported a 2015 survey finding that about two thirds of Americans had no written will, with only 30 percent of those aged 45 to 54 and 46 percent of those 55 to 64 holding one.¹ The Kiplinger author told Marketplace in 2008 that the studies he had seen put the share without a will at 55 percent.⁴ The Kansas City Star, in 2014, said close to 60 percent of Americans die intestate.²

Figure

Who has a will, by age

all adults

32%

adults in their 60s

46%

adults in their 70s

66%

upper income adults 70 and older

83%

The most recent and largest measurement came from the Pew Research Center, which surveyed 8,750 adults in September 2025 and found that 32 percent had created a will. The share climbed steeply with age: 46 percent of adults in their 60s, 66 percent of those in their 70s, and about eight in ten of those 80 and older. Income mattered too, with 83 percent of upper income adults aged 70 and older reporting a will against 51 percent of lower income adults in the same age group.⁹ Most parents over 65 had talked with adult children about funeral wishes and medical care, while fewer had discussed what should happen to their belongings.⁹

What remains unsettled, then, is less the law than the behavior. The rules are published by every state, and the alternatives that pass property outside the will keep multiplying, yet a majority of adults under 70 still have not written one. Whether the newer tools make the will less necessary or simply leave more gaps for it to catch is a question each generation of planners answers for itself, and the surveys of the next decade will show which way the answer went.