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 What Is A Will?

A will is a specific estate planning legal document that allows a person to designate how their property will be distributed upon their death. The property that may be disposed of in a will includes an individual’s real and personal property.

Generally speaking, in order for a will to be considered valid in most states, the will must meet a certain list of requirements, such as:

  1. The will must be made in writing, either handwritten or printed.
  2. The will must be signed by the testator (i.e., the person that is making the will)
    • If the testator is not able to sign the will, such as if they are unable to use their hands, they may make a mark such as an X, and the witnesses who are signing, typically two non-interested parties, can attest that the testator did sign it;
  3. Although not generally a requirement, a will should also be dated to reduce confusion regarding whether it is the most current will if multiple wills have been created;
  4. As mentioned briefly above, the will must also be witnessed by at least two or more competent witnesses who are not interested;
    • Not interested generally means that the two witnesses cannot be named in the will or otherwise have a stake in the will; and
  5. The testator must have testamentary capacity. Testamentary capacity is generally met if the testator is above the age of 18, in the military, or is legally married, and understands:
    • That they are creating a will;
    • That the effect of the will is to distribute their property upon their death;
    • They understand the specific property that is to be distributed upon their death; and
    • They understand who will receive the property in the event of their death.

Importantly, the requirements mentioned above will vary depending on the state where the testator resides and what type of will is being created. For example, if the will is holographic (i.e., a will that is handwritten by the testator), such a will generally does not need to be witnessed so long as the will is both written and signed by the testator.

What Are Legal Terms in a Will That a Person Should Know?

Common will terms can include:

  • Testator: This is the term for the person that is making or creating the will;
  • Beneficiary: This is the term for the people who are to receive distributions from the will;
  • Capacity: This term refers to the ability of the testator to make a will;
  • Executor: This is the term for the person appointed by the testator to handle will issues after their death;
  • Witnesses: This is the term for the people present during the formal will signing. To reiterate, most states require that at least two non-interested witnesses be present at the final signing of the will; and
  • Decedent: This is the term for the person who died, which in this case would also be the person who created the will. Often this term can be used interchangeably with testator.

What Is a Form Will?

A form will is a pre-formatted legal document that an individual can purchase that contains the legal language needed for the purchaser to draft their own will. The legal template will often leave blank spaces for personal information, such as names, VINs, legal property descriptions, and other information to be filled in by the purchaser.

It is important to note that not every form will have been updated per current will requirements. As such, ensuring that any form will be utilized has been created in accordance with the most updated laws regarding forming a will in your local jurisdiction is important.

If a form will does not conform to all of the requirements for a valid will, it may be considered invalid and result in the beneficiaries of the will having to go through the probate process.

Are Form Wills Considered Valid by Law?

In short, yes, form wills are recognized by law as valid wills. However, as noted above, anyone that utilizes a form will be very cautious when using them for a variety of different reasons, including:

  • Form wills do not allow an individual to take into consideration special circumstances or include form language necessary to address such circumstances;
  • Form wills usually do not take into account important estate matters, such as the payment of federal or state estate taxes;
  • Form wills typically give little to no guidance on how to properly execute the will after it has been created, such as signing and witness requirements;
  • Form wills are also typically drafted for a mass audience, meaning the will may not conform to local requirements or have the correct language for the jurisdiction in which the testator resides; and
  • Form wills are often slow to update as to possible law changes. If the will is not updated with the latest requirements to be considered valid, the will may be deemed invalid, and the testator may be considered to have died intestate.

As a result of the above deficiencies, form wills often result in the creator not properly setting up an estate plan that would most benefit their estate and family after they die. Additionally, because of the over-simplified approach, form wills are much easier to contest regarding the will’s validity. This is especially true if the will was not signed before a notary and witnessed by two non-interested witnesses.

Finally, while form wills are technically legal documents, because of the problems mentioned above, courts tend to look more closely at the validity of a form will. This additional review process often results in a slower legal process for probating the will and estate, which often means more expenses and frustration for the will’s beneficiaries to manage after the testator’s death.

Can a Form Will Be Modified?

In short, it depends. Whether or not a completed will may be modified and the rules for modifying a completed one depend on local state laws. In general, for a will to be modified:

  • First, the state in which the person is seeking to handwrite a will to make modifications must be a state that recognizes handwritten wills; and
  • Second, if the state does recognize handwritten wills, that state may require that the handwritten portion meet certain requirements.
    • For example, the state may require that the handwritten portion that modifies the original will be signed and dated by the testator.

Generally speaking, a court will consider any handwritten modifications present on a will to be the most current interpretation of the testator’s wishes. This is often because most probate courts abide by the four corners rule, meaning that the court will look within the four corners of the document itself when interpreting the overall intention of the will.

However, as mentioned above, individuals may seek to contest the will’s validity and introduce outside evidence to the court for the court to disregard the handwritten portion of the will. For example, a party may contest the handwritten note present on a will crossing out their name. As such, if a party present in the will is to be excluded, the testator should draft a new will entirely to prevent confusion about their intentions.

Do I Need An Attorney For Help Preparing A Will?

It is best to consult an experienced inheritance lawyer if you wish to prepare a will. An experienced estate planning attorney will be best suited to help you prepare a legally valid will according to your state’s specific requirements.

Additionally, you may also have an estate planning attorney do a will review of your form will to ensure the will is valid. In any case, an experienced attorney will be able to ensure the will you create is valid and will also be able to represent your estate in court, as needed, should any legal issues involving your will arise.

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