One of the basic items that should be part of your estate plan is a last will and testament, colloquially known as a will. In most cases, a will is the most common tool for transferring property upon death. It also is the easiest to create. To make a will, however, you must follow certain rules.
Jump ahead to these sections:
- Step 1: Understand What a Will Does
- Step 2: Follow the Rules
- Step 3: Write Down What You Want To Do With Your Property upon Your Death
- Step 4: Date Your Will
- Step 5: Sign Your Will
- Step 6: Have Two People Witness Your Signature
Each state has its own rules for wills, but the rules are easy to follow. All you have to do is follow these six easy steps.
Step 1: Understand What a Will Does
The primary purpose of a will is to clearly state your intent for the transfer of your property upon death and for the court to make your will legally binding. Many people do not have a will because they think it isn't necessary. They think that their families know what they want to happen to their property.
“Surely my daughter will take my jewelry. I know my sister will want the old photos of Mom and Dad. And I promised my dear friend next door that she could have my car since my husband won’t need two vehicles.”
But shortly after your funeral, your sister makes it known that she would like to have some of your jewelry. Your son refuses to give away those pictures of his grandparents. And when your dear friend next door stops by to pick up your car, your daughter insists that you promised her that she could take the car to college.
Suddenly, your family and friends are fighting over your property. Having a will may help to avoid these issues.
Step 2: Follow the Rules
Most people think that because a will is a legal document, they must have a lawyer draft their will because it requires a lot of fancy legal words to make it valid.
This is not the case. In fact, anyone who is at least 18 years old can draft a will. Although having a lawyer is advisable, especially if you have a lot of property or other interests that may require more insight into the law, getting a lawyer to write your will isn't necessary, as long as you follow the rules.
Generally, the rules are rather simple.
- You must intend the document to be your last will and testament (also known as testamentary intent)
- It must be written (a few states allow oral wills)
- It must be dated
- It must be signed
- It must be witnessed (there are few exceptions)
You may be wondering why a will has to be so formal, with witnesses and signatures. Although many states are starting to relax their strict requirements for wills, the rules actually play four very important roles in making sure your property goes to the people you want to receive it.
It is a legal document. The rules let you know that what you are doing is a serious matter. You are drafting a legal document. It will be filed in court. It will have the binding effect of law.
This document has legal consequences. The rules indicate that what you are doing has legal consequences. This is not something to be taken lightly, and requires reflection and thoughtful insight.
You are expressing your intent regarding all of your property and the things that are important to you in life. You may be sharing your wishes for where you want to be buried or how you want to be remembered. A will warrants respect and formality.
It allows the state to recognize that this is actually your will. Having rules and formality is a way for the state to be sure that you actually want this document to be your will.
Having this ceremonious signing of a document with specific requirements for where and when you sign your name and how many people have to witness you signing it confirms to the state that, indeed, you intend for this document to be your valid will and for the court to make it legally binding.
The court wants to make sure this document is valid. Perhaps most importantly, the rules help the court to know that this really is your will and that what it says is really what you want.
Before the court even considers what you wrote in your will, it wants to be sure the document is valid. It wants to confirm that you signed it. It wants to know that there are no reasons to think that you may not really want this to be your will.
Reasons to Question the Validity of a Will
Some reasons for this may be that at the moment you signed your will:
You were of unsound mind. For example, you suffered from a mental illness that prevented you from understanding what you were doing.
You did not really intend for this document to be legally binding. For example, you planned to make subsequent changes to the document or you subsequently wrote a different will to replace this one.
You drafted your will and disposed of your property based on facts that you thought were true but were either not based in reality or were real, but would not have led a reasonable person to dispose of their property the way you have in your will.
An example would be that you believed that your children are not really your biological children, so you did not include them in your will, but there are no facts that would lead a reasonable person to conclude this.
With undue influence, the person influencing you would benefit financially.
An example would be the following. Your daughter who has cared for you for 30 years, whom everyone knew you intended to provide for in your will, gets married and moves away to start a family.
Your distant cousin moves in to take care of you, and insists that she must have access to your bank accounts and that you should leave your house to her instead of your daughter if you want her to continue caring for you. You are dependent on her care, so you execute a will as she insists.
In this case, then someone was pressuring you, coercing you, or taking advantage of you in a way that caused you to:
- Draft a will
- Not draft a will
- Revoke a will
- Amend a will
Someone misled you by telling you something they knew to be untrue in order to get you to dispose of your property in a way you would not have done otherwise.
For example, your estranged wife passes away and leaves the money in her bank account to your two children, to be divided equally. She also gives your estranged son her land property.
Jealous that her mother once again favored her brother over her, your daughter tells you that “Mom left everything to brother in her will” and that she got nothing, knowing that this would prompt you to amend your will to disinherit your son and leave everything to your daughter.
The purpose of a will is for the court to do what you want with your property and make it legally binding. By requiring such specific rules for wills, it is less likely that you signed a will that you did not really intend to be legally binding.
Step 3: Write Down What You Want to Do with Your Property Upon Your Death
This step satisfies the rule that your will must be written. With few modern exceptions, this rule has been in place since 1677, in a law called the Statute of Frauds. The document can be typed or written by hand. It must be written on a permanent surface, such as paper.
You might be wondering, “What else besides paper would someone write on to draft a will?” However, a court will validate a will that is written on clothes, wooden furniture, a dinner napkin, or anything that will permanently record your intent. One court even accepted a will written on an eggshell, but you can just use regular paper.
As noted, some states allow for oral wills, otherwise known as “nuncupatory” wills. These might be performed by someone who is dying, and with family members gathered near, orally expresses their wishes for someone to receive property after they die.
If you aren't quite ready to write a will on a piece of paper at home, consider one of these options below.
|Option||Price range||Best if you...||Get started|
|Basic estate planning attorney||
|Attorney who specializes in complex estates||
As long as the statement is witnessed and the witnesses reduce the testator’s statement to writing within a reasonable amount of time and sign it, this will usually satisfy a state’s requirement for nuncupative wills.
When you express what you want to do with your property, you must be sure to clearly identify the property you are referring to and the person you want to receive it, also known as a “beneficiary.” You should try to be as specific and unambiguous as possible.
For example, do not just say, “I leave Mary my car,” particularly if you have a daughter named “Mary” and a sister named “Mary” or if you own more than one car. Instead, use full names of beneficiaries, with an identifying description of the property and the beneficiary.
Thus: “To my daughter, Mary Elizabeth Lastname, I leave my red, 2019 Volkswagen.” The court then knows which of your two cars you are referring to and which Mary you intend to have it.
In addition to naming beneficiaries, there are other persons you may want to identify in your will. These include:
This is the person you designate to file your will in court and to administer all the details of your will, such as paying your debts, transferring titles of property, and finalizing your estate.
If you do not appoint an executor in your will, the court will appoint a representative to serve in this capacity.
A residuary beneficiary
This is the person to whom you want the rest of your property to go after you have given specific items to certain people. This property is called the “residue” of your estate.
If you do not name a residuary beneficiary to take the residue of your estate, the rest of your property will be distributed to your heirs according to the laws of your state. This is called “intestacy.”
You may want to name alternate beneficiaries and an alternate executor if any of those you named should die before you.
If any of them predeceases you and you have not named an alternate, their property will be distributed through intestacy.
Step 4: Date Your Will
You should always write the date on your will, especially if you have drafted or plan to draft another will. If someone tries to contest your will by claiming that you had executed a different will and intended the other will to be your valid will, the dates will help to identify which will you wrote most recently. This is the will that the court will accept as your valid will.
The court could accept both wills if you intended the subsequent will to supplement the previous one. Furthermore, if you did not express your desire for the first will to be void when you drafted the second will, the dates can help clarify your intent.
This is why when you already have a will and decide to draft a new will, you should include in the second will a provision that says, “I hereby revoke all other wills and codicils that I have previously executed and intend that they be null and void” (or something to that effect; you do not necessarily have to use this specific language).
A “codicil” is just a legal name for a document with which you add to or supplement an existing will. You must follow the same rules for a codicil as you do for a will.
Step 5: Sign Your Will
When you have completed steps one through four and have identified all the property to give away to all your respective beneficiaries, it is time to sign your will and for your witnesses to witness your signature. Even your signature must satisfy specific rules. These include:
You must sign with your fully intended signature. This means that if you normally sign your full name on legal documents, you should sign your full name on your will.
If you usually draw a happy face next to your name, then be sure to do the same when you sign your will. Likewise, if you have gotten in the habit of simply scribbling a mark on the paper when you sign your name, then repeat that when you sign your will.
Although your witnesses will attest that they saw you sign your will, if someone attempts to invalidate your will by claiming that the signature on the will is not yours or that you never properly executed the document because you did not write your full name, the court may consider outside evidence showing that you always signed your name the way you signed it on your will.
Remember that what is required is your fully intended signature. So even though scribbling a mark on the paper may be sufficient as a valid signature, it will not be sufficient if you intended to sign your will differently but, for whatever reason, you couldn’t.
In the event you suddenly become distracted, weak, or ill, and even though you made what appears as a mark on the page, which could be sufficient as a valid signature, this “mark” will not be sufficient. It will not be sufficient based on the fact that you did not make the mark fully intending that it would serve to execute your document.
However, if a witness testifies truthfully that they witnessed you begin to sign your full name when you suddenly became ill and then you stated:
“I am too weak to write my entire name on my will. This mark that I have scribbled on the page will have to suffice,”
Then your mark would be accepted — not because marks are acceptable, but because there is evidence that the mark is what you intended to be your full signature for purposes of executing your will.
The court’s only concern is whether you intended at that moment to execute your will by signing the way you signed.
Step 6: Have Two People Witness Your Signature
For your will to be valid, you must have a sufficient number of disinterested witnesses. Most states require two disinterested witnesses. However, a state could require more than two.
A “disinterested” witness is someone who is not receiving a benefit from your will. If a witness receives a benefit from your will, then they are “interested” and are presumed to have an incentive to claim that your will was validly executed when it really wasn’t.
Some states allow beneficiaries to serve as one of the required witnesses. Other states prohibit them entirely. Still, others allow interested witnesses to count as one of the required witnesses but limit the amount they receive under the will to the amount they would receive through intestacy, which eliminates any incentive they might have to falsify the witnessing of the will.
Similar to the other rules for wills, the rule for witnesses may be different in each state. One of the rules that could differ is the number of witnesses required. Another is the rule regarding what the witnesses must-see. States will require one of two things:
- The “sight” test. That each witness sees the testator sign the will and sees the other witness sign the will.
- The “conscious presence” test. That neither witness is required to actually see the testator’s signature, but that each witness was aware that the testator was signing a will and could have seen the testator’s signature if they had looked.
To avoid any possible contest, it is always better to have the witness “see” the testator’s signature, just to be sure.
Also, there are variations among states regarding whether both witnesses must be in the presence of the testator and each other at the same time. Some states require this. Other states allow each witness to sign the will at different times with the testator.
It may be possible as well for the testator to have already signed the will before having the witnesses sign. To satisfy the rule, however, the testator must show the witnesses the signature that they already signed, state that it is their signature on the will, and then have the witness sign the will (this is called witnessing a signature “by acknowledgment”).
Having a Will is Easy
We have a long history of requiring people to follow a lot of rules to have a valid will. It seems unnecessary sometimes, but there are good reasons for the rules. Having to satisfy some rules, however, is no reason not to have a will. The rules are easy to satisfy if you understand them. In its essence, to have a valid will, you should follow these six easy steps:
- Understand what a will does
- Make sure you follow the rules for wills in your state
- Write down what you want to do with your property upon your death and who you want to receive it
- Date your will
- Sign your will
- Have two people witness your signature
If you are unsure about any of these steps or how to follow the rules to have a will, you should seek legal advice before executing your will.