How to Create a Valid Will – List of Requirements

There are many ways to create a will valid. Some states may recognize handwritten or “holographic” wills – even  a last will and testament scrolled onto an envelope may be legally recognized. While sometimes we can dispense with formalities, it is generally not a good to rely upon exceptions to long accepted estate planning rules that each state has created. This article will list the primary requirements that you need in order to create a legally valid will.

Will Drafting Requirements

In order to create a valid will, you’ll want to follow these suggestions which apply generally in the United States. If you follow them, your assets will more than likely be distributed as you intended rather than as a probate court guesses may have been your wishes. If you can, it is always best to have an experienced Estate Planning Attorney prepare your will as they are most familiar with all state laws and requirements.

1. Age

You must be of an appropriate legal age, usually an “adult”, in order to create a will. For the majority of states this is age 18 or older although some states have a lower age requirement. Most states should have this information online.

2. Capacity

You need to know that you’re creating and signing a will. You must also be aware of the what property you have and recognize all the people who are to receive the proceeds of your estate. In other words, you must be of “sound mind.” There is no requirement that you must be confirmed by a court to be of sound mind – the law presumes that you – the “testator” – is of sound mind at the time of the drafting and signging of the will. However, if there is a question as to the “capacity” of the testator to understand all these issues, then the will could be challenged in court on the grounds of incompetence of the testator. The standard of proving incompetence is rather high. A party cannot simply walk into court and claim that the testator’s memory had or has faded and has or had trouble with recalling information at various times. There are occasions where a will is videotaped in order to put to rest any challenges by disgruntled relatives who are not satisfied with the contents of the testator’s will and may go to court claiming that the testator lacked the mental capacity to create a valid will.

3. Intent

The will must clearly state that the testator intends to dispose of and distribute his property and that it is his final words on the matter – it is truly intended to be a last will of the testator. There cannot be any ambiguity as to what the document is, for example, a loan or a gift.

4. Signature

A will must be signed by the testator and with his or her freedom to do so. If the testator is threatened to sign a will (placed under duress), it could be challenged as being invalid. If the testator is ill or suffers from a condition of being unable to sign (including illiteracy), the testator can make an “X” as a signature. The testator may even direct that a lawyer or witness can sign the will on behalf of the testator. Please consult with an experienced Estate Planning Attorney before considering using a substitute signature as state laws will vary. A failure to properly conform to state law could leave the will void and not valid.

5. Written

Most states require a will to be written or typed, witnessed and signed. Oral wills are permitted only in a limited number of circumstances and not in all states. Don’t be lazy and scribble a few words on a memo pad – carefully plan out your will in advance and reduce it to words on paper and get it witnessed and signed. Many people wait until the last minute when they realize that time is short. This is why it is important to think ahead and take out some time to plan your estate.

6. Formalities

Only a limited number of states allow informal wills in exceptional circumstances. All states have requirements which must be followed. Virtually all states require two “competent” witnesses (unbiased people who can testify in court), Vermont and New Hampshire require three witnesses, and Puerto Rico requires three witnesses plus a notary. Witnesses must be unbiased or “disinterested” – they cannot receive benefits from the testator’s will or be related to the testator. If the witnesses are “interested” parties, this places the will at risk for being declared void or being ripe for challenge by unhappy heirs. Parties who are dissatisfied with their share of the will may claim that the witnesses are lying as to the validity of the will because they have an interest in dividing the property as is presently stated in the will and beneficial to them.

7. Execution

In addition to a signature placed on the bottom of a will, other formalities may be required such as the date and place of the signature. There is also usually a statement made that the signature on the will has been viewed by the witnesses and that either the testator signed the will in front of the witnesses or has acknowledged that the testator’s signature is genuine. The witnesses may state that they have signed in each other’s presence but this is not necessary. A majority of states permit “self-proving affidavits” – a document that accompanies a will and signed by the witnesses, confirming that the signatures on the will are genuine and enables a probate court to make such an assumption. This may make it unnecessary for witnesses to testify in court to authenticate the will, which is especially helpful should the witnesses become die before the testator or be otherwise unavailable. In some states, other people may be needed to testify as to the authenticity of the signatures on the will.

Michael M Wechsler, Esq.

Michael M. Wechsler is an experienced attorney, founder of TheLaw.com and of-counsel to Kaplan, Williams & Graffeo, LLC. He was also an SVP and chief Internet strategist at Zedge.net and legal consultant at Kroll Ontrack, a leading service e-discovery and computer forensics service provider.

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