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:

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.

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:

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:

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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