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How to Make a Will

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Where Do I Start if I Need a to Make a Will?

Drafting a will can be a very extensive project. Creating a will requires knowledge of both your assets as well as state laws. Most people do not understand how to make a will that satisfies the requirements of state laws. 

While it is not a formal requirement that a lawyer draft your will, it is almost certain that you will have questions during the drafting phase. It is to your benefit to contact a lawyer who can help you draft, revise, edit, and review your last will documents. 

Wills may either be oral or in writing. You may wish to check the laws of your state- some states such as California do not enforce oral wills. In general, it is always best if your will is formalized into a written document. 

How to Ensure My Will Is Valid?

Of course, you cannot be expected to know everything about how to make a will. However, it helps if you have some basic background knowledge about wills before you meet with your attorney. 

Most state laws require wills to have the following elements in order to be valid:

  • The testator (the person creating the will) is of sound mind at the time of execution, and has reached the age of majority (18 or 21 years old, depending on the state)
  • The testator has signed and dated the will
  • The will has been attested (signed) by at least two witnesses who do not stand to gain from the will distributions
  • The document clearly indicates that it is a will; usually the words “Last Will and Testament” are enough

If your will is invalid, your property will have to be distributed through the probate process. This may result in a property distribution that is different from your intentions. Thus, it is important that your will documents meet these requirements, and any other specific requirements in your state. 

What Are Some Common Legal Issues Associated with Wills?

Even with a valid will, it is possible for many legal issues to arise during the creation process. Some common legal issues associated with will documents include:

  • Errors: Mistakes or errors in the will can cause confusion at the moment of execution, when property is to be distributed. For example, spelling errors or wrong dates may result in property being distributed to the wrong person or at the wrong time.
  • Vague or Ambiguous Language: A common mistake with wills is that the language is not clear enough. State your intentions as specifically as possible so as to avoid misinterpretations. Also, family members can sometimes have the same exact name. Be sure that each person and item of property can be clearly identified solely by reading the document. The executor of your will should not have to resort to other means besides the document in order to make distributions.   
  • Fraud/Coercion:  It is illegal to force a person to create a will under conditions of fraud, coercion, or undue influence. Be wary of any persons who approach you and attempt to influence your decisions in the will. Do not sign any documents or create any will provisions unless you are sure of what it states.
  • Duplicates, Modifications, and Revisions: It is common for a will to undergo several revisions. Be aware of how a will revision or a duplicate will is going to affect the property distributions.

As you can see, there can be many pitfalls that should be avoided when making a will.  It is often helpful to begin creating a will early while you are capable of making sound decisions. 

Should I Contact a Lawyer?

You may wish to contact an estate planning lawyer before you begin drafting a will. That way, your attorney can advise you on the best way to create your will documents. Also, a lawyer can explain to you how the wording in your will may affect the outcome of property distributions. Be sure to communicate any inquiries or concerns that you might have to your attorney. 

Photo of page author Peter Clarke

, LegalMatch Content Manager

Last Modified: 05-29-2014 03:37 PM PDT

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