How to Make a Will?

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 What Is A Will?

In short, a will is an estate planning document allowing an individual to designate how their estate will be distributed upon death. A person’s estate comprises real and personal property, such as houses and vehicles, that may be distributed upon death. However, for a person to have a say in the exact way their property is to be distributed upon their death, they must execute a valid will.

Although the exact laws for creating a valid differ by state and jurisdiction, in general, in order for a will to be considered valid in most states, the will must meet each of the below requirements:

  • The will must have been made in writing.
  • The will must have been signed by the “testator” (i.e., the person that made the will);
  • Although not generally a requirement, the will should also always be dated, as doing so can help to reduce any confusion that may arise regarding which will is the controlling will if there have been multiple drafted wills;
  • The testator must have signed the will.
    • If the testator cannot properly sign the will, such as if they cannot use their hands, then laws typically allow that person to make a defining mark, such as an X. Then, the witnesses who are signing the will at the time of execution can attest that the testator did sign it;
  • The will must also be witnessed by at least two or more competent witnesses who do not have an interest in the estate.
    • This means that the witnesses who signed the will at the time of the will’s execution cannot be named in the will or otherwise have a stake in the will; and
  • The testator must possess proper testamentary capacity.
    • A person is generally considered to possess testamentary capacity if they are above the age of majority in their state (generally 18 years of age or older), if they are in the military, or if they are legally married, and know:
      • That they are creating a will;
      • That the effect of the will is to distribute their estate property upon their death;
      • That they understand the specific property in which they are distributing; and
      • That they understand who is receiving the property being distributed.

Once again, the requirements for creating a valid will vary depending on the state in which the person wishing to draft the will resides. As such, it is important to consult the local estate laws of the jurisdiction in which the testator resides to ensure that any will being drafted complies with the rules of that jurisdiction.

The laws concerning a will’s validity will also depend on the type of will being created. For example, if the will being created is a holographic will, then the will may have different requirements for being valid. A holographic will generally does not need to be witnessed as long as the will is written and signed by the testator.

What Should a Person Know Prior to Drafting a Will?

Before drafting a will, there are numerous things that a person should consider before creating their will. First and foremost, a person should do a proper inventory of their estate to understand the exact scope of their personal and real property. Once again, a person’s estate refers to all of their tangible and intangible property, including but not limited to:

  • Their personal items, such as furniture, jewelry, automobiles, etc.;
  • Their bank accounts;
  • Any real estate, including an individual’s homestead and any other interest they may hold in other real property;
  • Stocks, securities, bonds, cryptocurrencies, and other digital items of value; and
  • Any other asset that holds a monetary value.

A person should also understand how their estate will be distributed upon their death and have an idea of how they wish to distribute their estate. As such, a person should understand exactly how their estate assets will be distributed upon death. This means that they should understand and be able to identify all of their beneficiaries, including their relationship.

Individuals should also understand any additional clauses they wish to include in their will, such as terms that may address modifying the will, canceling the will, or contesting it.

It is also important to understand local state laws regarding forming valid wills. However, not everyone may be able to understand all of the local laws and rules regarding forming a valid will, and as such, may need to consult with a lawyer for advice and assistance.

Once again, wills that do not meet the local requirements may not be valid, meaning that the will would not take effect upon the testator’s death. Instead, the state rules on intestate succession of property would apply in lieu of the will being admitted to the probate court.

What Are Common Legal Terms Utilized in Creating a Will?

A person drafting a must understand common legal terms utilized within the will document. Common will terms that are utilized in creating a will include:

  • Testator: This term is used to refer to the person who is making or creating the will;
  • Beneficiary: This term is used to refer to the people who are to receive distributions from the will;
  • Capacity: This term refers to an individual’s ability to make a will;
  • Executor: This term is used to refer to the person appointed by the testator to handle will issues after their death;
  • Witnesses: This term is used to refer to the people who are present during the formal signing of the will.
    • To reiterate, most states require that at least two non-interested witnesses be present during the will signing; and
  • Decedent: This term refers to the person who died and created the original will.

What Happens if the Will Created Is Not Valid?

As a legal document, it is common for there to be legal disputes associated with a will. For example, there may be conflict associated with what a certain term contained in a will means or whether not a person should receive estate assets. Legal disputes and will contests may require rewording the terms of the will, the will may be replaced with a past will, or the will may be declared invalid, and the intestacy laws may apply in lieu of the will.

Examples of common legal issues that may arise when a will is admitted to a probate court after the death of the testator include, but are not limited to:

  • Disputes Regarding a Later Will: One common dispute involves the discovery of a purported will that was made after the one has been admitted to the probate court.
    • A will made later will rule if there are no problems with the will concerning its validity;
  • Undue Influence: If another party influenced the testator in creating their will, the will might be determined to be invalid by the court;
  • Fraud: If evidence is provided that the testator was tricked into signing the will, or was confused as to the contents of the will, then the will may be declared invalid by the court;
  • Mistakes: The presence of mistakes in the will, such as Incorrect spelling or incorrect dates, may cause problems when a will is being reviewed. Specifically, the mistakes may be utilized to show that the person who created the will could not do so; or
  • Vague or Ambiguous Language: When a will’s language is unclear, the will may be declared invalid. As such, it is important to utilize specific language regarding intentions surrounding the distribution of estate assets to avoid any confusion later upon reading the will.

Do I Need A Lawyer for Help With Creating a Will?

If you wish to create a will, it is in your best interests to consult with an experienced will lawyer. An experienced attorney will be best suited to help you prepare a legally valid will according to your state’s specific requirements.

Additionally, an experienced will lawyer will also be able to represent your interests in court should any legal disputes arise regarding the validity of your will during the probate process.


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