If your will does not comply with certain formalities, a probate court may not accept it and handle your estate the same as if you died intestate (without a will).
Table of Contents
Making a Will
Making a will is a vitally important act with far-reaching consequences. Since you cannot directly communicate how you want your estate handled after you pass away, having a valid will is one of the few ways to protect and provide for your family members and loved ones. However, if a court determines your will is invalid, your estate passes according to your state’s intestacy laws.
“Testator” is the name given to a person who has written and executed a valid last will and testament. As the testator, you can specify exactly how you would like your estate handled upon your death, including how to distribute your property, who should watch over your minor children (if any), and who should administer your estate.
While the specific legal requirements for making a will vary from state to state, be aware of a few essential formalities. Generally, a will is invalid unless it fulfills the following basic requirements.
A person must be of legal age to make a will. Most states consider you to have legal capacity if you are 18 years of age or older, lawfully married, or a member of the U.S. military.
A person must have “testamentary capacity” to make a will. In most states, a will-maker has testamentary capacity if they have a sound mind. Being of sound mind means that you understand that you are making a will and its effect, understand the nature and extent of your estate, and know that you are disposing of property and assets.
A testator must voluntarily enter into and sign their will. A will executed by someone who was coerced or who signed the will under duress or undue influence is not considered a valid legal document.
A person has the required intent to make a will if, at the time of the signing, they intend to dispose of property when they die.
Disposal of Property and Named Beneficiaries
A will must properly dispose of the deceased person’s property and name ascertainable beneficiaries. The testator should include all property and assets in their will or in a separate document referred to in the will. The will should also clearly designate the people or entities who are beneficiaries.
Signed, Dated, and Witnessed by Two Other Parties
States will generally accept into probate a typewritten will that meets all of the other statutory requirements of a valid will (i.e., signed by the testator and two witnesses). Some states also recognize holographic wills, (meaning handwritten) or partially handwritten wills that are not attested to by any witnesses. Note that holographic wills, even where accepted, are more likely subjected to challenges during the probate process, so it’s best to avoid them. Very few states recognize oral wills.
Most state laws require that the testator sign the will in front of two witnesses. The witnesses must also sign the testator’s will and may need to attest that they saw the other witness sign. States generally require “disinterested” witnesses, meaning witnesses that will not personally benefit under the will (like beneficiaries).
A testator does not have to date a typewritten will, however, they must date a handwritten will to be legal. It is still good practice to date your typewritten will because if a deceased person has multiple wills, it will be harder to prove which will is the person’s final will.
A “self-proving affidavit” is also permitted by many states. In the affidavit, the witnesses to the will swear that the testator executed the will. This affidavit is a substitute for the witnesses’ testimony in court after the testator’s death. The process typically requires the testator and the witnesses to sign a sworn statement in front of a notary public.
Although not technically required to make a will valid, you should ideally name an “executor” or “personal representative” in your will. Your executor’s role is to settle your estate and distribute your assets when you die. As such, you should appoint a trustworthy and competent person. If you do not name an executor in your will, the probate court may appoint someone for you.
If you have minor children, you should also name a legal guardian for them in your will.
Changes and Updates
If you experience life changes such as marriage, divorce, or the birth of a child, you may need to update your will with a codicil or create a new one. A codicil is an amendment to your will and allows you to modify or revoke specific provisions. Codicils have legal requirements that are the same or similar to the requirements to make a will, so check your state’s laws to be sure that any codicils you make are valid. If you create a new will, destroy your old one and write in your new will that you revoke the previous one.
Other formalities for making a valid will vary depending on where you live, so it’s best to check the estate planning laws of your particular state.
Need Help Drafting a Valid Will?
To avoid challenges in probate court and ensure your wishes are honored after your death, you must draft a will that meets your state’s requirements. It’s easy to do so with Findlaw’s state-specific last will and testament form. If you have a simple estate, save time and money with our online estate planning tools to draft a legally binding will without the time and expense of consulting with an attorney.
If your estate is more complex and you still have questions about creating a valid will, seek legal advice from an experienced estate planning attorney near you.