How to Write a Will
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What Is a Will?
A will is a document that identifies all of the testator’s (the person writing the will) assets, and says what is to be done with them when the testator dies. It is not required to execute a will, but many people create will in order to control how they want their property to be distributed at the time of their death.
Typically, a will leaves all of the testator’s property to his or her immediate family members – often their spouse and/or children. However, when thinking about how to write a will, you can leave your property to whomever you want.
What Property Can Be Included My Will?
A testator may only dispose the property that the testator will own at the time of death and the disposition of the property may be to any person, corporation, charity, or government entity. The property that may be disposed by Will includes:
- Testator's separate property
- the one-half of community property that belongs to testator
- the one-half of quasi-community property
What Are the Requirements to Execute a Valid Will?
While it is possible for a person to write their own will, most states have some very specific requirements for a will to be legally valid. For that reason, it’s a very good idea to have an attorney write your will, or at the very least review the will you have written, to look for any problems. There requirements to execute a valid Will are:
1. Testamentary Capacity
The testator must have testamentary capacity at the time they are drafting the will or the will can be contested as void.
- 18 years of age: At the time of execution, the testator must be 18 years or older
- Sound Mind: At the time of execution, the testator must be of sound mind and memory and understands that the document he/she is drafting is a Will. Many Wills have a introductory paragraph written by the testator declaring he understands his surrounding and actions and is "of sound mind and memory"
2. Testamentary Intent
The testator must have the present intent to make a Will. A Will may be denied in probate if it is proved that at the time the testator was executing his will, he lacked testamentary intent. Testamentary intent may be influenced through undue influence, duress, coercion.
3. Formalities Required for a Will
Courts are very strict requiring precise legal requirements to execute a valid will. A formally executed Will must:
- Be in writing and signed by the testator: The testator or someone directed by the testator must sign the Will. The signature can be initials or formal name.
- Testator's Acknowledgment of Signature: Some states require that the testator's signature or testator's acknowledgment that he just signed the will must be in the joint presence of two disinterested witnesses.
- Witnesses Must Sign Will Before Testator Dies: The Will must be signed by at least two witnesses before the witness dies and understand that they are signing a will. The witnesses do not have to sign at the same time or in front of each other.
- Witnesses Must Understand Their Action: The Witnesses who are signing the will must understand that the document they are witnessing and signing is the testator's will.
- Qualification of Witnesses: The witness must be competent at the time of signing the will. In some states, the witness must be disinterested and not be a beneficiary taking anything from the will. If this occurs the witness has the burden to prove that their was no duress, influence, or fraud involved during the execution of the will.
4. Harmless Error Doctrine
If a will is not properly executed because it is not in compliance with the witness requirement, the will may still be admitted in probate if the challenging party of the will proves with "clear and convincing evidence" that at the time the executor signed the document, the testator intended to be his or her will.
Can a Will Be in Handwriting?
A will that is written in writing by the testator's is called a codicil or holographic will and will be as effective as a formal typed up will. A holographics will may not be recognized in every state. However, a holographic will in the state's that recognize it are permitted if the signature and material provisions of the will are made in the testator's own handwriting and testator had capacity and intent at the time of execution
Can a Will Be Revoked after Executed?
Yes. A will can be revoked by a testator at anytime before his death, even if he contracted or promised that he would not revoke. There are several ways to revoke a will:
- Creation of a new will that is inconsistent with an older will
- Physical act of cancelling, burning, tearing, or voiding the will
- Divorce automatically takes spouse out of will
- Partial revocation of some portions of the will
How Can a Lawyer Help?
It should go without saying that this is far from a comprehensive guide on how to write a will. If you want to know how to write a will in more detail, it’s essential that you speak with a qualified estate planning attorney.
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Last Modified: 02-12-2015 11:25 AM PST
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