When you decide it is time to make a will, also known as “drafting” a will, there are some things to consider before you get started. Preparing your will can be a pretty large endeavor. In order to create one, you will need to inventory your assets: what you have in terms of money and other items of value. It’s also important to know that wills are created differently in different states, because each state has its own laws on wills.
It is not required to hire a lawyer to draft your will. However, you may not understand everything you need to know, and therefore may need to look to a lawyer for advice and assistance. For one thing, a lawyer in your state who works on wills should know your state’s laws, and can make certain your will complies with them.
Wills that do not meet requirements may not be valid, which would mean your will would not take effect upon your death. Instead, state rules on succession of property would apply. The lawyer can also make sure all of your assets are included in the will. They can help write the will, then help you look over it and revise it, if necessary.
Not all wills are in writing. It is possible to make a will orally in some states. It is crucial that you know the laws of your state, including whether oral wills can be enforced in your state. In general, though, the rule of thumb is that it is always safest to express your last wishes in writing, so that they will be observed.
How Can I Make Sure My Will is Valid?
Even if you choose to work with an attorney, it is good to brush up on some basics about wills before meeting with one.
Despite differences in states’ laws on wills, there are some basic elements that are generally required of wills across the board, in order to prove that they are valid:
- The creator of the will (also referred to as the testator) must be of sound mind, and of age, at the time of creation. Sound mind means that the testator is not mentally incapacitated by mental illness or by other illness that affect mental capacity (such as Alzheimer’s). The testator must also have reached the age of majority for their state, which is likely either 18 or 21;
- The creator of the will must sign it, as well as date it;
- A will must have the signatures of other people, usually two others, who attest to the wil being yours; and
- The will must be labeled as such. In other words, “Last Will and Testament,” or something to that effect, should be written at the top.
As mentioned before, wills that fail to meet the most basic requirements for validity will not be honored. The deceased’s estate, or the property they own, must then go through probate court and be distributed according to the state law that governs in the absence of a will. This may well be in opposition to how you would have distributed your property.
What Are Some Common Problems with Wills that Lead to Them Being Invalid?
Although the testator had mental capacity, signed the will, and had witnesses it still may be possible that there will be a legal problem with the will. These are some common examples of other legal issues that arise when wills are reviewed after their creator’s death:
- Later will: it may be discovered that the deceased actually made a will after the will that is currently considered to be the correct one. A will made later in time will rule, if there are no other problems with it.
- Undue influence: If the testator is influenced by another party in the making of their will, it may be determined to be invalid.
- Fraud: if the testator is tricked into signing the will, or is confused as to its contents, it may be invalid. Fraud may include forgery.
- Mistakes: Incorrect spelling or incorrect dates can cause problems when a will is being reviewed following it’s maker’s death, to the point that it is rendered invalid.
- Vague or Ambiguous Language: When the language of a will is not clear, it can end up rendering the will invalid. It’s important to be specific about what you want and state it clearly in your will. This can avoid confusion and conflict upon the reading of the will.
There are a lot of things that can go wrong with the drafting of a will. It’s to your benefit to review all the information carefully.
Do I Need to Hire a Lawyer for Help Drafting a Will?
It can also be to your benefit to work with an estate planning lawyer in the making of your will. They can advise you on state law, make sure all requirements are observed, help inventory your assets, properly include all the content you wish to include, and review the will to make sure it is free of errors.