Wills: An Overview

Wills are legal documents, usually part of estate planning, that declare how to distribute a person’s property after their death. Wills can also contain other provisions, including the appointment of a guardian for minor children if there is no surviving parent. The person who makes the will is referred to as the testator. As the testator, you will have to follow your state’s laws in creating your will.

Legal Requirements of a Will

While each state has its own laws regarding the validity of a will, the variations, for the most part, are usually small. Some common legal requirements of a last will include the following.

Testator’s Capacity

In general, you have to be at least 18 years old to create a valid last will and testament. However, some states have exceptions for younger individuals if they are married or in the armed forces.

Additionally, the testator must be of “sound mind,” meaning that you have the knowledge that you are making a will. It also means that you understand the effect the document will have, the nature of the property it covers, and the parties that stand to benefit from it. The “sound mind” requirement is the basis of many will contests.

Disposition of Assets

The will must contain at least one provision regarding who will inherit your assets. This can include property, life insurance policy proceeds, real estate, and other items you want your loved ones to receive. If you need to name a guardian of any minor children, you will also need to include this information.

Declaration

As the testator, you’ll need to declare that the document is your last will and testament. A provision to this effect is usually included in written wills. However, some states also require the testator to verbally make this declaration in front of a witness.

Written Wills vs. Oral Wills

The majority of states require a will to be in writing. A few states permit oral wills, but these are usually only permitted in specific circumstances, such as a person in “imminent peril of death.”

Signed

The testator must sign the last will and testament. However, if you are physically unable to sign, some states will permit a witness to sign the document on your behalf.

Witnessed

Most states require at least two witnesses at the signing of the will, and most require that witnesses be at least 18 years old. Some states require the witnesses to be disinterested, meaning that they do not stand to benefit from the will. Many witnesses submit affidavits stating they will not benefit from the will at the time of signing, in case they must testify in court at a later date.

Executed

The will must contain a provision declaring where the will was signed, the date it was signed, and that it was signed in the presence of witnesses.

Reviewing and Changing a Will

It’s often a good idea to review your will at different points in your life to ensure that the document properly communicates your wishes, especially after major life changes. For example, you may want to add or remove heirs in the event of a later marriage or birth of a child. Or you might need to name a new executor in the event of the executor’s death. There are a few ways to review and make changes to your will.

One way to change a will is to revoke it in its entirety. This is usually done by creating a new will that states you revoke all your previous wills. You can then write “revoked” on your old will or otherwise take action that shows your intent to revoke the will, such as by tearing it and throwing it away.

Another way to change a will is to make an amendment to it. The amendment is called a codicil and is often used to make a small change in the will, such as who will inherit a specific item. Codicils must be prepared and executed in accordance with the same state laws that apply to wills.

Speak to an Experienced Wills Attorney Today

This article is intended to be helpful and informative. But even common legal matters can become complex and stressful. A qualified wills lawyer can address your particular legal needs, explain the law, and represent you in court. Take the first step now and contact a local wills attorney to discuss your specific legal situation.