How to Select a Wills and Living Wills Attorney: A Complete Guide

Before choosing an attorney for a will or a living will, settle a prior question: does your situation need an attorney at all, or would an official form do what you need? The answer depends on your state, because states set the rules for signing a will, for what happens to a will after divorce, and for the form of a health care directive. It also depends on a few federal rules that apply everywhere and that a simple form does not handle. The useful approach is to work through a short list of questions that every state answers in its own way, confirm your state’s answers, and then decide whether what is left calls for an attorney. California’s published forms make a good worked example for each point, and they appear below in labeled boxes; the questions are the same wherever you live.

The Four Documents, and Which Decision Each Makes

• A will says who receives the property that passes under it at your death and names the person who will administer your estate. It has no effect while you are alive.
• A living will, or advance health care directive, states your wishes about medical treatment if you cannot speak for yourself, and a state’s form can also provide for naming a health care agent.
• A financial power of attorney names someone to manage money and property for you during your life. It is a separate decision about whom to trust with your finances, with its own rules.
• A trust can hold property during your life and direct what happens to it afterward. If an attorney recommends one, ask how property will be transferred into it and who will do that work.

Write down which of these you think you need before your first consultation. An attorney’s answer to “Which of these do I need, and why?” shows whether he or she is evaluating your situation or offering a package.

Your State Checklist

1. Does your state publish an official will form, and does the form say when it is not enough?

Some states publish a statutory will that you can complete yourself. Where one exists, read its instructions: they can tell you, in the state’s own words, which situations call for a lawyer.

Worked example: California. California’s Probate Code includes “the California Statutory Will form,” with questions and answers designed “to help you understand about Wills and to decide if this Will meets your needs” (Cal. Prob. Code § 6240). The form asks, “Are there any reasons why I should NOT use this Statutory Will?” and answers that it “is not designed to reduce death taxes or other taxes,” naming situations in which to talk to a lawyer: larger estates, “business-related assets,” a trust for children, “assets in some other state,” wanting to “disinherit your spouse, domestic partner, or descendants,” and “valuable interests in pension or profit-sharing plans,” as well as “stepchildren or foster children whom you have not adopted.” It also warns that you “may only fill in the blanks.”

What to confirm: whether your state has a statutory form, what its instructions list as reasons not to use it, and whether any of those reasons apply to you. If none applies and the form says what you want, it may be enough. If one applies, it tells you what to ask an attorney about.

2. How must a will be signed and witnessed in your state?

Execution rules decide whether a will is valid, and they differ by state: how many witnesses, whether they must be present together, whether a notary is involved, and what happens if a step is missed.

Worked example: California. A person “18 or more years of age who is of sound mind may make a will” (Cal. Prob. Code § 6100). The will must be in writing, signed, and witnessed by “at least two persons” who, “being present at the same time,” witnessed the signing or the testator’s acknowledgment and understood that the document was the testator’s will. If those steps were not followed, the will may still be treated as valid if its proponent proves “by clear and convincing evidence” that the testator intended it to be the will (Cal. Prob. Code § 6110). That rescue requires proof after your death, which is a reason to get the signing right the first time.

What to confirm: your state’s witness and signing rules, and how the attorney would conduct and document the signing. Supervised execution is different work from a document sent for you to sign on your own, and the fee should say which one you are buying.

3. Will your will still work if you move?

People move, and a will signed in one state may be read in another.

Worked example: California. A written will is validly executed in California if it complies with California’s requirements, or with “the law at the time of execution of the place where the will is executed,” or with the law of the place where the testator “is domiciled, has a place of abode, or is a national” (Cal. Prob. Code § 6113).

What to confirm: whether your state recognizes wills signed elsewhere, and whether an existing will should be reviewed after a move. If you own real estate in more than one state, ask how that affects your plan.

4. What does divorce do to your will in your state?

It is easy to assume that divorce cancels gifts to a former spouse automatically. Whether and how it does is a state-law question for the will, and the will is not the only document involved.

Worked example: California. Unless the will says otherwise, if a marriage “is dissolved or annulled, the dissolution or annulment revokes” gifts to the former spouse, powers of appointment conferred on the former spouse, and any nomination of the former spouse “as executor, trustee, conservator, or guardian,” and the provisions revive if the testator remarries the former spouse. Property that the revoked gift would have carried “passes as if the former spouse failed to survive the testator” (Cal. Prob. Code § 6122).

What to confirm: your state’s rule for wills, and separately the federal rule for employer benefit plans, discussed in item 6.

5. Does your state publish a health care directive form?

A health care directive is governed by state law, and states may provide an official form.

Worked example: California. California’s statutory advance health care directive explains, “You have the right to give instructions about your own physical and mental health care. You also have the right to name someone else to make those health care decisions for you,” and that “You are free to use a different form” (Cal. Prob. Code § 4701).

What to confirm: whether your state has an official form, whether the attorney would use it or a different form, and why. A reasoned answer either way is what you are looking for. If your health care agent and your financial agent are different people, ask how the documents will work together.

6. Which of your assets will the will not control?

This item is the same in every state for one reason: assets that pass by beneficiary designation or account title do not pass under the will. The California statutory will form says it plainly, noting that joint tenancy accounts pass to the other owner, that “life insurance and retirement plan benefits may pass directly to the named beneficiary,” and that “a Will does not necessarily control how these types of ‘nonprobate’ assets pass at your death.”

Federal law can also override state rules here. In Egelhoff v. Egelhoff, a man had named his wife as beneficiary of a life insurance policy and pension plan “governed by the Employee Retirement Income Security Act of 1974 (ERISA).” His children relied on a state statute providing that a spouse’s designation as beneficiary of a nonprobate asset “is revoked automatically upon divorce.” The Supreme Court held that the state statute “has a connection with ERISA plans and is therefore expressly pre-empted” (Egelhoff v. Egelhoff). The beneficiary form on file with the plan can therefore control even where a state rule would have revoked it.

What to confirm: whether the attorney will review your beneficiary designations and account titles along with the will, and tell you which assets the will does not reach. A review of the will alone leaves the assets that pass outside it unreviewed.

7. Who keeps the original, and what must happen after death?

The original signed will matters, and states set duties for whoever holds it.

Worked example: California. Unless a probate petition has already been filed, “the custodian of a will shall, within 30 days after having knowledge of the death of the testator,” deliver the will to the clerk of the superior court, and a custodian who fails to do so “shall be liable for all damages sustained by any person injured by the failure” (Cal. Prob. Code § 8200). The statutory will form advises keeping the will “in your safe deposit box or other safe place” and telling “trusted family members where your Will is kept.”

Changing a will is also a formal act. The California form answers “May I add or cross out any words on this Will?” with “No,” and explains that you may change it only by signing a new will or an amendment called a codicil. It also lists events that call for a new will: “if you marry, divorce, or terminate your domestic partnership,” and “when you have more children, or if your spouse or a child dies.”

What to confirm: whether the attorney will keep the original, what happens to it if the attorney retires or closes the practice, and what your state requires of the person holding it after death.

Two Federal Questions That Apply in Every State

Federal estate tax

For deaths in 2026, the IRS lists a filing threshold of $15,000,000, and notes that “estates of decedents survived by a spouse may elect to pass any of the decedent’s unused exemption to the surviving spouse,” an election “made on a timely filed estate tax return” (IRS, Estate Tax). If your assets are well below that level, federal estate tax is not what calls for an attorney, although other items on your state’s list may. If they are near it, or if you are married and want to preserve the unused exemption for a surviving spouse, ask each attorney how he or she would handle it.

Long-term care and Medicaid

If you may need long-term care, transfers made now can affect eligibility later. Federal law sets a look-back date of 60 months for transfers made on or after February 8, 2006 (42 U.S.C. § 1396p). If long-term care is a realistic concern, ask whether the attorney’s practice includes Medicaid planning, or whether you would need a separate attorney for that part.

Deciding Between a Form and an Attorney

Once you have worked through the checklist, your situation is likely to fall into one of three patterns:

Pattern	What it suggests
None of your state form's warning situations applies; assets pass simply; no one needs special provision	An official form, signed correctly, may meet your needs. A short attorney review of the signing is still worth considering.
One or two warning situations apply, such as property in another state or a blended family	An attorney adds value on those points. Ask for a fixed fee for a defined set of documents.
Several apply, or taxes, a business, a trust, or long-term care planning are involved	You are past what a form is designed for. Compare attorneys on the specific issues, not on general reputation.

An example of working the list

Consider a widow with two adult children, a house in her home state, a small cabin in a neighboring state, a retirement account, and a life insurance policy from a former employer. Her home state publishes a statutory will form.

Working the checklist, she finds that the form’s own instructions flag property in another state, which applies to the cabin. Item 6 tells her that the retirement account and the life insurance pass by beneficiary designation, so the will does not control them, and that if either is an employer plan, the plan’s own beneficiary form governs. Item 7 tells her to decide who keeps the original. Her situation does not involve a business, a blended family, or an estate near the federal threshold.

She is in the middle row of the table: an attorney adds value on the cabin and on coordinating the beneficiary designations, but she does not need a large planning engagement. That narrows her comparison to two questions for each attorney: how would you handle the out-of-state property, and will you review my beneficiary forms as part of a fixed fee?

Questions That Show How an Attorney Thinks

Rather than testing an attorney on statute numbers, ask questions that require judgment about your situation:

• “Which of the situations in my state’s form instructions apply to me, and what would you do about each?” In a state without a form, ask the attorney to describe when a simple will would not meet your needs.
• “What would you recommend if I wanted the simplest plan that works?” Hearing a simple plan described gives you a baseline against which to judge any larger recommendation.
• “When should I review these documents?” Listen for whether the answer ties reviews to events, such as marriage, divorce, a birth, or a death, rather than to a fixed number of years.
• “Who will draft, and who will meet with me at the signing?”

Whose Attorney, and What It Costs

Estate planning can involve couples and other family members. Settle three things at the start: if you and your spouse plan together, whether the attorney represents both of you and what happens if your wishes differ, for example where one spouse has children from an earlier relationship; if an adult child brought you to the attorney, that you are the client and will be met with privately; and what will be shared with family members.

Ask whether the fee is fixed for a defined set of documents, hourly, or a combination, and what it covers: which documents, help transferring assets into any trust, a review of beneficiary designations, and the cost of later changes. A bar listing confirms the license; a firm’s website shows whether the firm describes simple wills, trusts, or both; neither tells you how the attorney would handle your list.

Legal disclaimer: This guide provides general information about wills, advance health care directives, and selecting an attorney, using California statutes as an example. It is not legal advice. Requirements differ by state; speak with an attorney licensed where you live.