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What is a last will and testament, and how do you make one?

STATEState law: each state sets who can make a will and how it is signed, witnessed, changed and kept. Examples from California, Texas, Florida and New York.Checked by the Justice legal team against official sources · Last reviewed Oct 3, 2026

Key points

Signing: In writing, signed, and witnessed by at least two people in all four states. New York adds a 30-day window for the witnesses.
Handwritten: A will in your own handwriting needs no witnesses in California and Texas. Florida has no such exception; New York allows it only for some service members and mariners.
Who can: Age 18 or older and of sound mind. Texas also allows a person under 18 who is or was married or serves in the armed forces; Florida, an emancipated minor.
Limits: A will doesn't avoid probate. A divorce cancels gifts to the former spouse in all four states unless the will says otherwise.

A will is a legal paper that lists a person's wishes about what will happen to their property after death, as California's courts define it. It can also name an executor to handle the estate and, in California's statutory will, a guardian for children under 18. Each state sets its own rules for who can make a will and how it must be signed, witnessed and changed.

Below: what a will can and can't do, what makes it legal, how to make one and which official forms exist, handwritten wills, self-proving affidavits, the rules side by side in California, Texas, Florida and New York, how to change or revoke a will, where to keep the original, will vs living trust, what happens without a will, and when to get a lawyer, each with its official sources.

What is a last will and testament?

A will is the document that says who gets your property when you die. Last will and testament is its formal name: a State Bar of Texas article on handwritten wills suggests a title such as "The Last Will and Testament of" followed by your name. The person who makes the will is the testator. A will can:

Say who receives your property. You may designate who will receive your assets at your death. In Texas, a will may also disinherit an heir.Cal. Prob. Code § 6240 · Tex. Est. Code § 251.002
Name an executor. The person who appears before the court, collects your assets, pays your debts and taxes, and distributes your assets as you specify. It can be a person or a qualified bank or trust company.Cal. Prob. Code § 6240
Name a guardian. California's statutory will lets you nominate a guardian to raise your children who are under 18, and a custodian to manage assets for a young beneficiary until an age you choose from 18 to 25.Cal. Prob. Code § 6240

What a will doesn't do. It doesn't avoid probate: California's statutory will form says that, with or without a will, assets in your name alone usually go through the court probate process. It doesn't control property that passes outside it, such as money in a joint tenancy bank account, a house held in joint tenancy, or life insurance and retirement benefits paid to a named beneficiary. And in California, a will can give away only your one-half of community property. See Probate.

Tip. A will takes effect only at death. Until then you can change it, and you can sell or give away what it mentions. As California's form puts it, your will only acts on what you own at death.

What makes a will legal: age, capacity, signature and witnesses

In California, Texas, Florida and New York, the basic will is in writing, signed, and witnessed by at least two people. The details differ:

Age and sound mind. 18 or older and of sound mind in all four states; New York says of sound mind and memory. Texas also allows a person under 18 who is or has been married, or who serves in the US armed forces; Florida allows an emancipated minor.Cal. Prob. Code § 6100 · Tex. Est. Code § 251.001 · Fla. Stat. § 732.501 · N.Y. Est. Powers & Trusts Law § 3-1.1
What sound mind means in California. The person must be able to understand the nature of making a will, understand and remember their property, and remember and understand their relations to their family and others the will affects.Cal. Prob. Code § 6100.5
The signature. The testator signs, or another person signs the testator's name in the testator's presence and at their direction. Florida and New York require the signature at the end of the will.Cal. Prob. Code § 6110 · Tex. Est. Code § 251.051 · Fla. Stat. § 732.502 · N.Y. Est. Powers & Trusts Law § 3-2.1
The witnesses. California: at least two people, present at the same time, who see the signing or the testator's acknowledgment and understand it is the will. Texas: two or more credible witnesses at least 14 years old, who sign in the testator's presence. Florida: the testator signs or acknowledges in front of at least two witnesses, who sign in front of the testator and each other. New York: the testator declares to each witness that it is their will, and at least two witnesses sign, with their home addresses, within one 30-day period.Cal. Prob. Code § 6110 · Tex. Est. Code § 251.051 · Fla. Stat. § 732.502 · N.Y. Est. Powers & Trusts Law § 3-2.1
A witness who inherits. In New York, a gift to a witness is void unless two other witnesses receive nothing under the will. In California, unless two other witnesses are disinterested, a gift to a witness is presumed to have been obtained by duress, menace, fraud or undue influence. In Texas, it is void if the will can't be proved without that witness, unless a disinterested, credible person backs up the witness's testimony. In Florida, a will isn't invalid because an interested witness signed it.N.Y. Est. Powers & Trusts Law § 3-3.2 · Cal. Prob. Code § 6112 · Tex. Est. Code § 254.002 · Fla. Stat. § 732.504
A notary. Not part of the basic signing rules in these four states. California's statutory will form says you do not need to have it notarized, and that notarization will not fulfill the witness requirement. In Texas and Florida, an officer authorized to administer oaths is used for the optional self-proving affidavit described below.Cal. Prob. Code §§ 6110, 6240 · Tex. Est. Code § 251.104 · Fla. Stat. § 732.503

Tip. A will that missed a witnessing step. In California, a court can still treat a will as properly witnessed if clear and convincing evidence shows that, when the testator signed it, they intended it to be their will.

How to make a will, step by step

List what you own and who should receive it. A will acts only on what you own at death. Check which property already passes outside it, such as joint tenancy accounts, life insurance and retirement benefits with a named beneficiary, payable-on-death accounts and transfer-on-death deeds.
Choose an executor, and a guardian if you have young children. California's statutory form suggests asking people whether they are willing to serve before you name them. Some people, banks and trust companies may not consent to serve or may not be qualified to act.
Use a form, or write your own. California's Probate Code contains the California Statutory Will, a simple will designed only for California residents 18 or older, and the courts' self-help site posts it. You may only fill in its blanks: adding or crossing out words can make it invalid. In Texas, a 2015 law required the Texas Supreme Court to create simple will forms. In 2023 it approved forms in English and Spanish for single, widowed or divorced people and for married people, with or without children.
Sign it in front of your witnesses. Follow your state's signing rule. On California's form, you sign in the presence of two adult witnesses, who sign in your presence and in each other's presence. The form says the witnesses should not receive assets under the will.
Consider a self-proving affidavit. In Texas, the testator and the witnesses can swear one before an officer authorized to administer oaths, at signing or later during their lifetimes. The will can then be admitted to probate without the witnesses' testimony. Florida also lets a will be made self-proved, at signing or at any later date.
Keep the original safe and say where it is. California's form says to keep it in a safe deposit box or other safe place and tell trusted family members where it is. Texas county clerks and New York Surrogate's Courts will hold a will for safekeeping. See where to keep the original.

Tip. Signed in another state? California accepts a written will that followed the law of the place where it was signed, or of the place where the testator lived. Texas has a similar rule. Florida accepts a will made by someone who wasn't a Florida resident if it was valid where it was signed, except a handwritten or oral will.

Handwritten (holographic) wills

A holographic will is one in the testator's own handwriting. Whether it is valid without witnesses depends on the state:

California: valid without witnesses. Valid whether or not witnessed if the signature and the material provisions are in the testator's handwriting; words of intent can be part of a commercially printed form. Without a date, it can fail where timing matters, such as a conflict with another will or doubt about capacity. California's courts suggest using the statutory will form as a template, writing out everything by hand, then signing and dating it.Cal. Prob. Code § 6111 · California Courts
Texas: valid without witnesses. A will written wholly in the testator's handwriting doesn't need witnesses. Unless it is self-proved, it can be proved in probate by two witnesses to the testator's handwriting. The testator can make it self-proved at any time during their life by attaching their own affidavit.Tex. Est. Code §§ 251.052, 251.107, 256.154
Florida: no exception. Every will must be signed and witnessed under the usual rules; a will in the testator's handwriting that follows them isn't treated as a holographic will. The rule that accepts wills made by nonresidents leaves out holographic wills.Fla. Stat. § 732.502
New York: only in narrow cases. Valid only if made by certain people, such as a member of the US armed forces in actual military or naval service during a war or other armed conflict, or a mariner at sea. It stops being valid one year after the service member's discharge, or three years after a mariner made it.N.Y. Est. Powers & Trusts Law § 3-2.2

Watch out. Handwritten wills are easier to challenge. A State Bar of Texas article notes that someone who knows you must testify that the will is in your handwriting. And if a disinherited heir challenges it, there is no witness to say how it was signed.

Will requirements in California, Texas, Florida and New York

State	Who can make one	Signing and witnesses	Handwritten will	Proving the signing
California	18 or older and of sound mind. Prob. Code § 6100	In writing and signed; 2 witnesses present at the same time. No notary needed. §§ 6110, 6240	Valid without witnesses if the signature and material provisions are handwritten. § 6111	An affidavit of a witness, or one in the will that includes the attestation clause, can prove the signing if no one contests. § 8220
Texas	18 or older, or is or was married, or serves in the armed forces; of sound mind. Est. Code § 251.001	In writing and signed; 2 or more witnesses at least 14 years old, signing in the testator's presence. § 251.051	Valid without witnesses if wholly handwritten. § 251.052	Self-proving affidavit sworn before an officer; then no witness testimony is needed in probate. §§ 251.102, 251.104
Florida	18 or older, or an emancipated minor; of sound mind. Fla. Stat. § 732.501	Signed at the end; 2 witnesses, who sign in front of the testator and each other. § 732.502	No exception: it must be witnessed like any will. § 732.502	Self-proof: the testator's acknowledgment and the witnesses' affidavits before an officer, in person or by online notarization. § 732.503
New York	18 or older, of sound mind and memory. EPTL § 3-1.1	Signed at the end; the testator declares it is their will; 2 witnesses sign with their addresses within one 30-day period. § 3-2.1	Only for some service members in wartime and mariners at sea, for a limited time. § 3-2.2	The witnesses' affidavit before an officer is accepted unless someone objects or the court requires testimony. SCPA § 1406

These are the statutes' basic rules, and each has exceptions. Other states set their own rules: start with your state's probate code or your state court's self-help website.

How to change or revoke a will

California's statutory will form says you may change your will at any time. In Texas, a court order that tries to stop a person from making a new will, signing a codicil or revoking a will is void.

A codicil. A separate document that amends a will. In Florida, a codicil must be signed and witnessed with the same formalities as a will. In New York, revoking a will revokes all its codicils.Cal. Prob. Code § 6240 · Fla. Stat. § 732.502 · N.Y. Est. Powers & Trusts Law § 3-4.1
A new will or a signed writing. A later will revokes an earlier one where it says so or, in California and Florida, where the two are inconsistent. In Texas and New York, a will can also be revoked by a later will or a writing signed with the same formalities as a will.Cal. Prob. Code § 6120 · Fla. Stat. § 732.505 · Tex. Est. Code § 253.002 · N.Y. Est. Powers & Trusts Law § 3-4.1
Destroying it. Burning, tearing or otherwise destroying or canceling the will, by the testator or by another person in the testator's presence. In California and Florida it must be done to revoke the will, and another person must act at the testator's direction. In New York, at least two witnesses must prove that another person acted in the testator's presence and at their direction.Cal. Prob. Code § 6120 · Tex. Est. Code § 253.002 · Fla. Stat. § 732.506 · N.Y. Est. Powers & Trusts Law § 3-4.1
Tearing up a newer will. In Florida, revoking a will that had revoked an earlier one doesn't bring the earlier will back.Fla. Stat. § 732.508
A will that can't be found. In California, if the will was last in the testator's possession, the testator was competent until death, and neither the will nor a duplicate original can be found, the law presumes the testator destroyed it to revoke it.Cal. Prob. Code § 6124

Divorce. In all four states, a divorce or annulment cancels what the will gives the former spouse, unless the will says otherwise:

California. Gifts to the former spouse and their nomination as executor, trustee, conservator or guardian are revoked, and the property passes as if the former spouse died first. A legal separation that doesn't end the marriage doesn't count, and remarrying the same person revives the will's provisions for them.Cal. Prob. Code § 6122
Texas. The will, including its appointment of an executor, is read as if the former spouse, and each of their relatives who isn't the testator's relative, had not survived the testator.Tex. Est. Code § 123.001
Florida. Any provision that affects the former spouse is void, and the will is read as if the spouse died when the marriage was dissolved. This doesn't apply if the will or the divorce judgment says otherwise, or if the will was signed after the divorce. It covers people who die on or after June 29, 2021.Fla. Stat. § 732.507
New York. A divorce, annulment or judicial separation revokes gifts to the former spouse and their nomination as executor or another fiduciary, and also other revocable gifts, such as life insurance beneficiary designations and revocable trusts.N.Y. Est. Powers & Trusts Law § 5-1.4

Tip. Marrying or having a child. California's statutory form says to make and sign a new will if you marry or divorce, and to sign a new will when you have more children. In Florida, a later marriage, birth or adoption doesn't revoke a will, but the new spouse or child may still inherit a share. See Family & divorce.

Where to keep the original will, and what happens to it after death

Keep the signed original, and tell people where it is. The State Bar of Texas article on handwritten wills reminds readers that you must have the original will to give to the probate court. In Texas, a will that can't be produced can still be probated, but the applicant must prove why it can't be produced and what it said.

California. The statutory form says to keep the will in a safe deposit box or other safe place. After the death, whoever has the will must deliver it to the superior court clerk within 30 days of learning of the death, and send a copy to the executor named in it. The courts call this lodging the will.Cal. Prob. Code §§ 6240, 8200 · California Courts
Texas. During your life, you or someone for you can deposit your will with the county clerk where you live, in a sealed wrapper, for a $5 fee. The clerk issues a certificate of deposit. After the death, whoever has the will must deliver it to the court clerk on receiving notice of the death. A will generally can't be admitted to probate after the fourth anniversary of the death, unless the applicant was not in default.Tex. Est. Code §§ 252.001, 252.002, 252.201, 256.003
Florida. Whoever has the will must deposit it with the court clerk within 10 days of learning of the death, and the clerk keeps the original for at least 20 years. An electronic will filed through the Florida Courts E-Filing Portal counts as deposited.Fla. Stat. §§ 732.901, 732.526
New York. The Surrogate's Court of the county where you live will hold your will for safekeeping in a sealed wrapper, for the fees set by law, and gives a written receipt. During your life it is released to you in person or on your sworn written order; after the death, the court opens it and makes its contents known.N.Y. SCPA § 2507

Tip. Electronic wills in Florida. Florida lets a will be signed electronically, and the witnesses can take part by audio-video link only through a supervised online notarization session. To be self-proved, an electronic will must be held by a qualified custodian. It is revoked by deleting, canceling, rendering it unreadable or obliterating it with intent to revoke.

Will vs living trust

Both say who gets your property. The main differences, in the words of official sources:

A will. Takes effect only at death. With or without a will, assets in your name alone usually go through probate.Cal. Prob. Code § 6240
A living trust. Created during your life: a trustee invests and manages assets for the beneficiaries on the terms you specify. Assets held in it pass directly to the beneficiaries, bypassing probate, as long as you have put your assets into the trust.Cal. Prob. Code § 6240 · Texas State Law Library · California Courts
Complexity. California's courts say living trusts are complicated and you usually need a lawyer's help, and California's statutory will form says trusts are too complicated to be used in it.California Courts · Cal. Prob. Code § 6240
Other ways to skip probate. A payable-on-death bank account or a transfer-on-death deed also passes property to the person you name without probate court. See assets that skip probate.California Courts

Which one fits depends on the family and the property. California's courts suggest having a lawyer help you, or at least review the documents you prepare yourself.

What happens if you die without a will

Dying without a will is called dying intestate. California's statutory will form explains that what you own in your name alone is then divided among your spouse, domestic partner, children or other relatives according to state law. The court appoints a relative to collect and distribute it. Each state sets its own order of heirs: see who inherits without a will in the probate guide.

Can you make a will without a lawyer?

California's courts say you can write your own will, hire a lawyer to write one, or use the California Statutory Will form. The Texas State Law Library points people who want to write their own simple will to templates in its e-books, free to Texas residents with a library account. It also lists the Texas Supreme Court's will forms.

The official forms themselves point to legal help for harder cases. California's statutory will form says it is a simple will, not designed to reduce taxes. It says to talk to a lawyer if, for example, you:

Own business-related assets or assets in another state.
Want a trust for your children.
Want to disinherit your spouse, domestic partner or descendants.
Have stepchildren or foster children you haven't adopted.

Consider talking to a lawyer or a legal aid office too if a family member may contest the will or someone's capacity is in question.

Find a lawyer or free legal aidLegal aid and state bar referral services, with first-consultation prices.ProbateWhat happens to the will and the estate after a death, and who inherits without a will.Power of attorneyWho can act for you while you are alive. A will only works after death.California Courts: California Statutory Will formThe fill-in will from Probate Code § 6240, with its instructions (PDF).California Courts: Wills, estates, and advance care planningWills, living trusts, payable-on-death accounts and transfer-on-death deeds, with sample forms.Texas State Law Library: Wills & DirectivesThe Texas Supreme Court will forms, templates and estate-planning resources.

Common questions

What is a last will and testament?

A legal paper that lists a person's wishes about what will happen to their property after death. It can name an executor to handle the estate and, in California's statutory will, a guardian for children under 18. It takes effect only at death, and assets in the person's name alone usually still go through probate.

What makes a will legal?

In all four states shown here, a person 18 or older and of sound mind puts it in writing, signs it, and has at least two witnesses sign it. Texas and Florida allow some people under 18. Some states add rules: in New York, for example, the witnesses sign within one 30-day period, and in Texas they must be at least 14. See the state-by-state comparison.

How do I make a will?

Decide who should receive your property and who should be the executor, write the will or use an official form, and sign it in front of at least two witnesses as your state requires. California's courts post the California Statutory Will form, and the Texas Supreme Court has approved will forms. Keep the original safe and tell trusted family members where it is.

Is a handwritten will valid?

In California, yes, even without witnesses, if the signature and the material provisions are in your handwriting. In Texas, yes, if it is written wholly in your handwriting. Florida has no exception: a handwritten will must be witnessed like any other. New York allows one only for certain service members in wartime and mariners at sea, for a limited time.

What is the difference between a will and a trust?

A will takes effect at death, and assets in your name alone usually go through probate. A living trust is created during your life; assets you put into it pass to the beneficiaries without probate court. California's courts say living trusts are complicated and you usually need a lawyer's help. See Will vs living trust.

What happens if you die without a will?

You die intestate, and state law decides who inherits what you own in your name alone, usually a spouse or domestic partner, children or other relatives. In California, the court appoints a relative to collect and distribute the property. Property with a named beneficiary or held in joint tenancy still passes outside probate. See Probate.

Official sources

California Courts Self-Help Guide: Probate terms (will, holographic will, intestate, living trust) courts.ca.gov
California Courts Self-Help Guide: Wills, estates, and advance care planning courts.ca.gov
California Courts Self-Help Guide: Guide to property after someone dies (lodging the will) courts.ca.gov
California Courts: California Statutory Will form, Probate Code § 6240 (PDF) courts.ca.gov
California Probate Code § 6100: who may make a will leginfo.legislature.ca.gov
California Probate Code § 6100.5: mental capacity to make a will leginfo.legislature.ca.gov
California Probate Code § 6110: execution of a will (signature and two witnesses) leginfo.legislature.ca.gov
California Probate Code § 6111: holographic wills leginfo.legislature.ca.gov
California Probate Code § 6112: witnesses, and gifts to a witness leginfo.legislature.ca.gov
California Probate Code § 6113: wills executed under the law of another place leginfo.legislature.ca.gov
California Probate Code § 6120: revocation by a later will or by destroying the will leginfo.legislature.ca.gov
California Probate Code § 6122: effect of divorce or annulment on a will leginfo.legislature.ca.gov
California Probate Code § 6124: presumption when the will can't be found leginfo.legislature.ca.gov
California Probate Code § 6240: the California Statutory Will form, with questions and answers leginfo.legislature.ca.gov
California Probate Code § 8200: delivering a will to the court within 30 days leginfo.legislature.ca.gov
California Probate Code § 8220: proving a will by a witness's affidavit leginfo.legislature.ca.gov
Texas State Law Library: Wills & Directives (Texas Supreme Court will forms, templates) sll.texas.gov
Texas State Law Library: Nonprobate Property (living trusts) sll.texas.gov
State Bar of Texas, Texas Bar Journal client page: How to write a valid holographic will texasbar.com
Texas Estates Code, Chapter 123: will provisions made before a divorce (§ 123.001) legis.texas.gov
Texas Estates Code, Chapter 251: who may make a will, signing and witnesses, holographic and self-proved wills legis.texas.gov
Texas Estates Code, Chapter 252: depositing a will with the county clerk, and delivery after death legis.texas.gov
Texas Estates Code, Chapter 253: changing and revoking a will legis.texas.gov
Texas Estates Code, Chapter 254: gifts to a subscribing witness (§ 254.002) legis.texas.gov
Texas Estates Code, Chapter 256: time limit and proof for probating a will legis.texas.gov
Florida Statutes § 732.501 (2026): who may make a will flsenate.gov
Florida Statutes § 732.502 (2026): execution of wills flsenate.gov
Florida Statutes § 732.503 (2026): self-proof of a will flsenate.gov
Florida Statutes § 732.504 (2026): who may witness flsenate.gov
Florida Statutes § 732.505 (2026): revocation by writing flsenate.gov
Florida Statutes § 732.506 (2026): revocation by act flsenate.gov
Florida Statutes § 732.507 (2026): effect of marriage, birth, adoption or divorce flsenate.gov
Florida Statutes § 732.508 (2026): revival by revocation flsenate.gov
Florida Statutes § 732.522 (2026): electronic wills, method and place of execution flsenate.gov
Florida Statutes § 732.523 (2026): self-proof of an electronic will flsenate.gov
Florida Statutes § 732.526 (2026): probate of an electronic will flsenate.gov
Florida Statutes § 732.901 (2026): production of wills flsenate.gov
New York Estates, Powers and Trusts Law § 3-1.1: who may make a will nysenate.gov
New York Estates, Powers and Trusts Law § 3-2.1: execution and attestation of wills nysenate.gov
New York Estates, Powers and Trusts Law § 3-2.2: nuncupative and holographic wills nysenate.gov
New York Estates, Powers and Trusts Law § 3-3.2: gifts to an attesting witness nysenate.gov
New York Estates, Powers and Trusts Law § 3-4.1: revocation of wills and codicils nysenate.gov
New York Estates, Powers and Trusts Law § 5-1.4: revocation by divorce or annulment nysenate.gov
New York Surrogate's Court Procedure Act § 1406: proof of a will by a witness's affidavit nysenate.gov
New York Surrogate's Court Procedure Act § 2507: wills received for safekeeping nysenate.gov

This page explains the law in general terms. It is not legal advice about your situation. Justice is not a law firm and is not affiliated with any court or government agency.

What is a last will and testament, and how do you make one?

What is a last will and testament?

What makes a will legal: age, capacity, signature and witnesses

How to make a will, step by step

Handwritten (holographic) wills

Will requirements in California, Texas, Florida and New York

How to change or revoke a will

Where to keep the original will, and what happens to it after death

Will vs living trust

What happens if you die without a will

Can you make a will without a lawyer?

Common questions

Official sources

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