Creating a Will: Legal Assistance for Service Members

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Having a legally valid Last Will and Testament is a critical step for every U.S. service member. It ensures personal wishes regarding property and family are respected and provides peace of mind.

This preparedness is not just a personal matter; it’s an essential component of overall mission readiness, safeguarding family stability during deployments or other challenging times. Fortunately, the Department of Defense (DoD) provides robust, free legal assistance services through installation Legal Assistance Offices to help eligible personnel create wills and other essential estate planning documents.

Planning for the unexpected protects loved ones and ensures final wishes are honored, and accessing military legal help makes this vital process straightforward and accessible.

Why Every Service Member Needs a Will

Military service, with its inherent risks including deployments, hazardous training, and frequent relocations, makes estate planning particularly crucial. Deployments can significantly limit a service member’s ability to communicate or manage affairs back home, underscoring the need for proactive planning. A will provides control over these situations after death.

Ensuring Your Wishes Are Followed

Without a valid will, a person dies “intestate.” In this situation, state law dictates how their property is distributed. These intestacy laws provide a default distribution plan, often directing assets to a spouse and children, or parents and siblings if unmarried with no children.

However, this generic formula may not reflect the service member’s specific desires, especially in situations involving blended families, unmarried partners, or specific wishes for particular assets.

Military life often involves changes in state residency due to Permanent Change of Station (PCS) moves, adding complexity as intestacy laws vary by state. Relying on these default state laws is therefore particularly inadequate for the unique circumstances of many military families.

A will allows the service member, known as the “testator,” to clearly direct the disposition of their “probate” assets—those assets titled solely in their name or without a designated beneficiary.

Protecting Loved Ones

One of the most critical functions of a will for military parents is the ability to nominate a guardian for minor children. Should both parents pass away without a will nominating a guardian, a court will make this decision.

While the court aims for the child’s best interest, the process can be lengthy, stressful, and may result in a choice the parents would not have made. Nominating a guardian in a will provides clear guidance to the court and helps ensure children are cared for by a trusted individual chosen by the parents.

Wills can also establish financial provisions, potentially including simple testamentary trusts (trusts created within the will), to manage inheritances for minor children or other dependents, ensuring their long-term support. However, more complex trust arrangements typically fall outside the scope of standard military legal assistance.

Handling Military Benefits and Assets

A will works in conjunction with other elements of a service member’s financial and benefits planning. It’s important to understand that not all assets are controlled by a will.

Certain military benefits, like Servicemembers’ Group Life Insurance (SGLI), pass directly to beneficiaries named on specific forms, regardless of what the will states. This distinction between assets governed by the will (probate assets) and those passing outside it (non-probate assets) is vital for effective planning.

A will helps manage the distribution of probate assets and should be coordinated with beneficiary designations for non-probate assets like SGLI and the Thrift Savings Plan (TSP). A will can also express preferences regarding funeral and burial arrangements, although these are generally considered non-binding requests for the family and executor.

Free Legal Help is Available: Your JAG Advantage

The Judge Advocate General’s (JAG) Corps of each military branch provides free legal assistance services to eligible personnel through Legal Assistance Offices (LAOs), often located within the Office of the Staff Judge Advocate (SJA) on military installations worldwide.

Mission and Confidentiality

The primary mission of these offices is to enhance the readiness and welfare of service members and their families by providing timely, professional legal advice and assistance on personal civil legal matters. Services are provided by licensed military judge advocates or civilian attorneys employed by the DoD.

Importantly, communications with a legal assistance attorney are confidential and protected by attorney-client privilege.

Who Can Use These Services? (Eligibility)

Eligibility for legal assistance is primarily governed by federal law (10 U.S.C. § 1044, accessible at Cornell Law Library). While specific services may depend on local office resources and staffing levels, the following groups are generally eligible:

• Active Duty Service Members: Members of the Army, Navy, Air Force, Marine Corps, Coast Guard, and Space Force on active duty, and their eligible dependents.
• Reserve Component Members: Reservists and National Guard members on federal active duty orders (Title 10) for 30 days or more, and their eligible dependents. Members on Title 10 orders are generally eligible for the duration of their orders. Following release from active duty orders of 30 days or more, Reserve Component members may be eligible for assistance related to issues arising from that active duty period for a time equal to twice the length of their service period. Traditional Guard and Reserve members (not on extended Title 10 orders) may still be eligible for deployment readiness assistance, such as wills and powers of attorney, at any time. Eligibility for members on Title 32 or State Active Duty orders can vary, and individuals should check with their local LAO.
• Military Retirees: Retired service members receiving military retirement or disability pay, and their eligible dependents. “Gray area” retirees (Reservists eligible for retirement pay at age 60 but not yet receiving it) are generally not eligible until they begin receiving retirement pay.
• Other Eligible Personnel: Certain DoD civilian employees, particularly those deploying to combat zones or stationed overseas, may be eligible for specific services. Surviving family members (e.g., Gold Star families) may also be eligible for certain assistance.

Eligibility is typically verified using a valid Uniformed Services Identification Card. It’s important to note that legal assistance offices often prioritize mobilization and deployment-related services. While the legal advice itself is free, access may involve wait times for appointments, especially for non-urgent matters, due to variations in office staffing and resources.

General Eligibility for Military Legal Assistance Services

Note: Eligibility and scope of services can vary based on local office resources and policies. Always verify eligibility with the specific legal assistance office.

Finding Your Local Office

The most effective way to find the nearest military legal assistance office is by using the official Armed Forces Legal Assistance Locator website. This tool covers all branches of service.

A significant benefit of the program is its inter-service nature; service members and eligible dependents can often receive assistance from an LAO belonging to any branch, not just their own. This is particularly helpful for those stationed far from an installation of their own service branch.

Military OneSource is another valuable resource. It provides information on legal assistance and can help connect users with their nearest office via its website or confidential helpline at 800-342-9647.

Legal Assistance Across the Branches

While the core mission and eligibility criteria are similar across the DoD, each military branch manages its legal assistance program with some variations in structure, procedures, and online resources. However, common services generally include:

• Estate Planning: Drafting and executing wills, testamentary trusts (simple), durable powers of attorney, healthcare powers of attorney, and living wills (advance medical directives).
• Family Law: Advice on divorce, separation, annulment, child custody and support, paternity, adoption, and name changes (though typically not drafting separation agreements or divorce decrees).
• Real Property/Landlord-Tenant: Lease reviews, advice on housing issues and disputes.
• Consumer Law: Advice on debt collection, contracts, warranties, lemon laws, and identity theft.
• Military Administrative Matters: Advice on SCRA protections, responses to letters of reprimand (LORs), financial liability investigations (FLIPLs), evaluation report appeals (OER/NCOER), security clearance issues (assistance varies by branch/office).
• Notary Services: Authenticating signatures on legal documents.
• Other Areas: Advice on taxation (some offices offer tax preparation assistance), immigration and naturalization, and special education law for Exceptional Family Member Program (EFMP) families.

Limitations

Legal assistance attorneys generally cannot:

• Represent clients in civilian court (with limited exceptions in some jurisdictions)
• Handle criminal matters (these fall under military defense counsel services)
• Provide advice on private business activities
• Handle employment disputes (except for USERRA)
• Represent clients in lawsuits against the U.S. government

Complex estate planning, such as creating living trusts (inter vivos trusts) or handling estates potentially subject to federal estate tax (currently over $13 million per individual, though state thresholds may be lower), is typically referred to civilian attorneys. LAOs may provide referrals to civilian attorneys, sometimes through pro bono programs like the ABA Military Pro Bono Project for eligible individuals.

Branch-Specific Resources and Procedures

Accessing services involves slightly different procedures depending on the branch and the specific installation. The use of online worksheets to gather information before an appointment is becoming more common, particularly in the Air Force and Space Force, but these tools supplement, rather than replace, the necessary consultation with an attorney and the formal in-person execution of documents.

Army

Legal assistance is provided through SJA Legal Assistance Divisions on installations. The Army Legal Assistance Program website provides policy information and links to the Armed Forces Locator.

Procedures vary: some offices require appointments for attorney consultations, while others may have specific walk-in days for certain services like wills. Some installations require completion of a will worksheet prior to scheduling an appointment.

Army Reservists may also seek assistance through the U.S. Army Reserve Legal Command (USARLC) detachments. The Army specifically highlights assistance with special education law.

Navy

Services are provided by Region Legal Service Offices (RLSOs) and their detachments. The Navy JAG Corps website offers information and uses the Armed Forces Locator.

Appointments are generally required for attorney services. Some RLSOs offer online worksheets (e.g., RLSO Naval District Washington) or self-help kiosks for simple POAs. The MyNavy Family mobile app may also contain relevant information.

Air Force / Space Force

The Air Force Legal Assistance website serves both Air Force and Space Force personnel and is the central hub. This site includes the Armed Forces Locator and strongly encourages the use of online worksheets for wills, advance directives, and POAs prior to visiting the legal office.

Users receive a ticket number after completing a worksheet online, which facilitates the appointment. While worksheets streamline preparation, final documents must be reviewed with an attorney and executed at the legal office.

Walk-ins are often available for notary and basic POA services, but attorney consultations (including will executions) typically require appointments. Space Force Guardians utilize Air Force legal offices.

Marine Corps

Legal Services Support Teams (LSSTs) provide assistance. Information is typically found on local base websites (e.g., MCLB Barstow, MCAGCC Twentynine Palms). The Armed Forces Locator can also be used.

Procedures vary significantly: some LSSTs offer walk-in attorney consultations for certain issues, while others require attendance at informational briefs (e.g., will brief, divorce brief) before services are rendered. Will worksheets are commonly used. LSSTs can also provide pre-deployment legal readiness briefs to units. The Marine Corps also has a distinct Victims’ Legal Counsel (VLC) program for victims of certain crimes.

Coast Guard

Legal assistance is available through District Legal Offices, the Office of Legal Assistance & Defense Services (CG-LAD) at HQ, and potentially at training centers or via deployed attorneys. The Coast Guard Legal Assistance website provides contact information and links. The Armed Forces Locator is also recommended.

Procedures vary; appointments may be required. Specific will questionnaires and POA applications may be used (example from MLEA, example from District 9). Coast Guard legal assistance requires a signed waiver for an attorney to represent both spouses in preparing separate wills.

Because procedures can differ even between installations within the same branch, contacting the specific local office intended for use is the essential first step to understand their current processes, appointment availability, and any required preparation.

Branch Legal Assistance Quick Reference

Getting Your Will Done: The Process

While specific steps can vary slightly by location, the general process for obtaining a will through military legal assistance follows these stages:

Step 1: Locate and Contact Your Office

• Identify the most convenient Legal Assistance Office using the resources mentioned above: the Armed Forces Legal Assistance Locator or Military OneSource. Remember that an office from a different branch may be able to assist.
• Visit the office’s local website (if available) or call them directly to confirm their current operating hours, specific procedures for will appointments (walk-in vs. appointment), required documents, and any pre-appointment preparation needed. This local check is vital due to procedural variations.
• Attorney consultations almost always require a scheduled appointment. Some offices may offer walk-in hours for notary services or simple Powers of Attorney.

Step 2: Prepare (If Applicable)

• Many offices, especially Air Force and Space Force, utilize online worksheets for wills and other estate planning documents. If directed by the local office, complete these worksheets online prior to the appointment. This allows clients to gather necessary information at home and significantly streamlines the in-office process. Bring the confirmation or ticket number provided by the online system. If worksheets are paper-based, complete them fully before the appointment if required.
• Gather essential information needed for the will:
  • Full legal names and current addresses for all individuals mentioned (spouse, children, other beneficiaries, proposed executors, proposed guardians and alternates)
  • A general list of significant assets (real estate, bank accounts, investments, valuable personal property)
  • Information on life insurance policies, especially SGLI, including current beneficiary designations
• Married couples must each have their own separate will. They should discuss their plans together but understand that the attorney represents each individual. Some branches (like the Coast Guard) require a signed dual representation letter if the same attorney assists both spouses.
• Bring a valid military ID card (for the service member, retiree, or dependent receiving services) to the appointment for eligibility verification.

Step 3: The Appointment and Execution

• During the appointment, the service member will meet with a legal assistance attorney. The attorney will review the worksheet (if applicable), discuss the client’s specific situation, wishes, and family circumstances, provide legal advice on options and implications, and answer questions.
• Based on this consultation, the attorney will draft the will and any accompanying documents (like POAs or advance directives).
• The client will have the opportunity to carefully review the drafted documents and ask clarifying questions before signing.
• The final, crucial step is the “execution” – the formal signing of the will according to the requirements of the service member’s state of legal residence. This typically involves the testator signing the will in the presence of two qualified (usually disinterested adult) witnesses, who then also sign the will in the testator’s presence. The Legal Assistance Office facilitates this entire process, providing the necessary witnesses and ensuring all state-specific legal formalities are met. This supervised execution is a key benefit of using legal assistance, as it helps prevent errors that could invalidate a self-prepared will. Notarization may also occur, although it’s not always legally required for the will itself in every state.

Decoding Your Will: Essential Elements

A Last Will and Testament is a formal legal document that outlines a person’s instructions for what should happen to their property after their death. It only becomes legally effective once the person making the will (the testator) has passed away. Understanding the key components helps in preparing to meet with a legal assistance attorney.

Key Roles Defined in a Will

• Testator: The individual creating the will.
• Executor (or Personal Representative): The person or institution nominated by the testator to carry out the will’s instructions. Their duties include gathering the estate’s assets, paying outstanding debts and taxes, and distributing the remaining property to the beneficiaries according to the will’s terms. This should be a trustworthy and capable individual or entity. An alternate executor should also be named.
• Beneficiaries: The individuals or organizations designated to receive assets from the estate. Beneficiaries should be clearly identified by their full legal names.
• Guardian: The individual(s) nominated by the testator to assume legal responsibility for the care and upbringing of their minor children if both parents die before the children reach adulthood. While this is a nomination, courts give significant weight to the parents’ choice expressed in the will. An alternate guardian should also be named.

Distributing Your Property: Probate vs. Non-Probate Assets

A common point of confusion is understanding what property a will actually controls. This distinction is fundamental to effective estate planning, especially for service members who often hold significant assets like SGLI.

Probate Assets

These are assets owned solely by the testator at the time of death, or owned with others in a way that does not involve automatic transfer to a survivor (like “tenants in common”). The will directs the distribution of these assets after debts and expenses are paid. Examples include:

• Bank accounts held in the testator’s name alone
• Stocks, bonds, or mutual funds held in a brokerage account solely in the testator’s name
• Vehicles titled only in the testator’s name
• Real estate owned solely by the testator or as a tenant in common
• Personal belongings (furniture, jewelry, collectibles)

Non-Probate Assets

These assets pass directly to a designated beneficiary or a surviving joint owner outside the will, based on the terms of a contract or legal title. The will has no control over these assets. Examples include:

• Life insurance proceeds (including SGLI and VGLI) payable to a named beneficiary
• Retirement accounts (like TSP, 401(k)s, IRAs) with designated beneficiaries
• Bank or investment accounts designated as “Payable on Death” (POD) or “Transfer on Death” (TOD)
• Property owned as “Joint Tenants with Right of Survivorship” (JTWROS) or “Tenancy by the Entirety” (a special form of joint ownership for married couples available in some states)

It is crucial for service members to ensure their beneficiary designations for non-probate assets (especially SGLI and TSP) are up-to-date and align with their overall estate planning goals, as these designations override any conflicting provisions in the will.

Common Distribution Plans and Provisions

• Specific Gifts (Bequests): A testator can leave specific items of property (e.g., “my grandfather’s watch to my son”) or specific sums of money to named individuals or charities.
• Residuary Estate: This clause distributes all remaining probate assets after specific gifts, debts, taxes, and administrative expenses have been paid. It often goes to the primary beneficiaries (e.g., “all the rest, residue, and remainder of my estate to my spouse, if she survives me, otherwise to my children in equal shares”).
• Distribution Methods: Wills often specify how shares are divided, especially if a beneficiary predeceases the testator. “Per Stirpes” is a common method where, if a child dies before the testator, that deceased child’s share is divided equally among their own children (the testator’s grandchildren).
• Testamentary Trusts: Simple trusts can sometimes be created within a will, often to manage assets for minor children until they reach a certain age. Legal assistance offices may be able to draft basic testamentary trusts, but complex trust arrangements usually require specialized civilian legal advice.
• Funeral/Burial Wishes: While preferences can be stated (e.g., cremation vs. burial), these are typically considered non-binding instructions for the executor and family. Pre-need arrangements made directly with a funeral home or for burial in a VA national cemetery are separate matters.
• Personal Property Memorandum: Some states permit a separate list, signed and dated by the testator and referenced in the will, to distribute tangible personal property (items like furniture, jewelry, photos). This can sometimes be updated without formally amending the will. The legal assistance attorney can advise if this is permissible under the relevant state law.

Understanding these elements helps service members articulate their wishes clearly when meeting with a legal assistance attorney, ensuring the resulting will accurately reflects their intentions as part of a coordinated estate plan.

Special Considerations for Military Personnel

Beyond the standard components of a will, service members face unique circumstances that require specific attention during estate planning.

Servicemembers’ Group Life Insurance (SGLI)

SGLI provides up to $500,000 in life insurance coverage for eligible service members. For many, this is their largest single financial asset. It is absolutely critical to understand that SGLI proceeds are paid directly to the beneficiary designated on the official SGLI election form (SGLV 8286), typically managed via the Record of Emergency Data (DD Form 93) or online systems like MilConnect.

The will cannot change or override the SGLI beneficiary designation. Failure to keep the SGLI designation updated, especially after major life events like marriage, divorce, or the birth of a child, can result in the insurance proceeds going to an unintended person (e.g., an ex-spouse instead of a current spouse or children), directly contradicting the service member’s wishes and potentially causing significant hardship and conflict for surviving family members.

Service members must regularly review and update their DD Form 93 and SGLI beneficiary designations to ensure they align with their current wishes and overall estate plan.

Survivor Benefit Plan (SBP) and Military Retirement Pay

The Survivor Benefit Plan (SBP) is an annuity program that allows retired service members (or active duty members who die in the line of duty eligible for retirement) to provide a portion of their retired pay as a continuing income stream to eligible survivors.

Decisions about SBP coverage and beneficiary designations are typically made at or near retirement and are managed by the Defense Finance and Accounting Service (DFAS). These elections are separate from the will. Military retirement pay itself generally stops upon the death of the retiree, making SBP a vital financial protection tool for many military families.

Deployment Planning

Legal readiness is a key aspect of deployment preparation. Before deploying, service members are strongly encouraged to ensure they have an updated will, appropriate Powers of Attorney (especially Special Powers of Attorney granting specific authority for childcare or financial matters during the absence), and Advance Healthcare Directives.

For service members with dependents who are single parents or part of a dual-military couple, a formal Family Care Plan is required by DoD instruction. Legal Assistance Offices can help prepare the supporting legal documents, such as POAs, often needed to execute these plans effectively.

State Legal Residency (Domicile)

A will is interpreted according to the laws of the testator’s state of legal residence, also known as domicile. For highly mobile military personnel, determining domicile can be complex. It’s generally the state the service member considers their permanent home, intends to return to when free to choose, and where they maintain connections like voting registration, driver’s license, or state tax filing. Frequent PCS moves can blur these lines.

It is crucial to correctly identify the state of legal residence when creating a will, as state laws regarding inheritance, probate procedures, and even the validity of will provisions can vary significantly. Legal assistance attorneys are experienced in helping service members navigate this issue and will draft the will in accordance with the laws of the properly identified state of legal residence.

Servicemembers Civil Relief Act (SCRA)

While not directly part of a will’s content, the SCRA provides significant legal protections for active duty service members in areas such as lease terminations, interest rate caps, and protection against default judgments in civil court cases. Understanding and utilizing SCRA rights is part of overall legal readiness, and Legal Assistance Offices routinely advise service members on these protections.

More Than Just a Will: Other Vital Legal Documents

A comprehensive estate plan addresses not only what happens after death but also manages potential periods of incapacity during life. Military legal assistance typically prepares several key documents alongside a will to provide this protection.

Power of Attorney (POA)

A Power of Attorney is a legal document authorizing another person (the “agent” or “attorney-in-fact”) to act on behalf of the person granting the power (the “principal”) in specified legal, financial, or personal matters. POAs are essential tools not just for potential incapacity but also for managing practical affairs during deployments, TDYs, or other absences inherent in military life.

• General Power of Attorney (GPOA): Grants broad authority to the agent to handle a wide range of financial and legal affairs, such as banking, real estate transactions, and business dealings. Because they are so powerful, GPOAs should be given only to highly trusted individuals. Some institutions, including certain military finance or personnel offices, may be reluctant to accept broad GPOAs and might prefer a Special POA tailored to the specific transaction needed.
• Special Power of Attorney (SPOA) (or Limited Power of Attorney – LPOA): Grants the agent authority to perform only specific, designated acts. This is often used for particular situations like selling a specific vehicle, managing a rental property, accessing a specific bank account, consenting to medical care for a child, or handling household goods shipments during a PCS move. SPOAs are frequently used to manage affairs during deployments.
• Durable Power of Attorney: Includes specific legal language ensuring the POA remains valid and effective even if the principal becomes mentally incapacitated. Most POAs intended for estate planning purposes (both General and Special) should be made durable.

Advance Healthcare Directives

These documents allow individuals to state their wishes concerning medical treatment in the event they are unable to communicate for themselves. Given the inherent risks associated with military service, these documents provide crucial guidance and peace of mind.

• Living Will (or Advance Directive): This document outlines preferences regarding the use, withholding, or withdrawal of life-sustaining medical treatments (such as ventilators, artificial nutrition, and hydration) if the individual is diagnosed with a terminal condition, is in a persistent vegetative state, or is near death.
• Healthcare Power of Attorney (HCPOA) (or Medical POA, Healthcare Proxy): This document appoints a trusted person (the “healthcare agent”) to make medical decisions on the principal’s behalf if they become unable to make or communicate those decisions themselves. The agent should be someone who understands the principal’s values and wishes, often discussed when creating the Living Will.

Legal Assistance Offices routinely prepare these POAs and Advance Healthcare Directives, often as part of a comprehensive estate planning package along with the will. Online worksheets provided by some branches may also cover these documents.

Ensuring Your Will is Valid

Creating a will is only effective if the document is legally valid. While specific requirements vary by state, certain fundamental elements are generally necessary. Using the military Legal Assistance Office helps ensure these requirements are met.

Basic Requirements for Validity

• Legal Age and Capacity: The testator must generally be at least 18 years old and possess “testamentary capacity,” meaning they are of sound mind and understand they are signing a document that will transfer their property upon death. A will signed under duress, undue influence, or fraud can be legally challenged and potentially invalidated.
• Written Document: Wills must almost universally be in writing. Oral wills (nuncupative wills) are recognized only in extremely limited circumstances in a very small number of states, and typically not for significant assets.

Proper Execution: Signing and Witnessing

The formal signing ceremony, or execution, is critical for a will’s validity. State laws dictate the specific procedures, but common requirements include:

• Testator’s Signature: The testator must sign the will, or another person can sign on the testator’s behalf in their presence and under their explicit direction.
• Witnesses: Most states require the testator to sign (or acknowledge their signature) in the presence of two adult witnesses who are disinterested (meaning they do not stand to inherit under the will). These witnesses must also sign the will in the testator’s presence and often in the presence of each other.

The Legal Assistance Office plays a vital role here. The supervising attorney ensures the execution ceremony complies precisely with the requirements of the testator’s state of legal residence, providing qualified witnesses and overseeing the process to prevent procedural errors that could jeopardize the will’s validity later.

State Law Variations and Safeguarding

Because requirements differ between states, relying on the expertise of the JAG attorney regarding the laws of the service member’s specific state of legal residence is essential. After execution, the original will should be stored securely, such as in a home fireproof safe or a safe deposit box. The executor should be informed of the original will’s location.

Providing copies (clearly marked as such) to the executor can also be helpful, but the original document is typically required for probate. Legal Assistance Offices generally do not retain original wills for clients.

Updating Your Will: A Continuous Process

A will is not a static document; it should be reviewed periodically and updated to reflect changes in life circumstances or laws. Major life events that warrant a will review include:

• Marriage or divorce
• Birth or adoption of children
• Death of a named beneficiary, executor, or guardian
• Significant changes in financial status or assets
• Moving legal residence (domicile) to a different state
• Changes in relevant laws

Updates should be made formally by executing either a new will that revokes the old one or a formal amendment called a “codicil”. Simply writing changes onto the existing will or crossing out sections is generally legally ineffective and can create confusion or invalidate the document.

Service members should consult their Legal Assistance Office to properly update their wills and related estate planning documents. Regular review ensures the will remains an accurate reflection of the service member’s wishes throughout their career and life changes.

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