A will is a type of legal document that identifies all of a testator’s (i.e., the person who is drafting the will) property and assets, and also provides what should be done with those items when the testator passes away.
Although you are not required to have a will, many people do so in order to control the manner in which their property gets distributed upon their death. This helps to ensure that the people they want to inherit or give their property to is given to the right person, as opposed to going to the state or following the line of succession listed in a particular state’s laws.
In general, a will typically leaves all of the testator’s property to that person’s immediate family members (e.g., usually their spouse and children). This is not a requirement, however, because you are permitted to leave your property to whatever person(s) or entities you want.
What Property Can I Add to My Will?
A testator may only give away the property that the testator owns at the time of their death. Aside from relatives, property and/or assets may also be left to other individuals, corporations, charities, and even government entities.
Some examples of property that may be disposed of by a will include the following:
- Any property that the testator owns separately (e.g., no one else has title to it, such as a wife or business partner);
- The one-half of community property that belongs to the testator (this refers to a type of marital property and is only recognized in community property states); and
- The one-half of the quasi-community property.
What are the Requirements of Writing a Valid Will?
While it is possible for a person to write their own will, most states have some very detailed requirements for the will to be considered legally valid. For this reason, it is a good idea to have an attorney help draft a will, or at the very least, allow them to review the will that was written, so they can identify any problems beforehand.
Some primary requirements for writing a will that is valid include:
1.Testamentary Capacity: The testator must have testamentary capacity at the time they wrote their will; otherwise, the will can be contested and invalidated. The requirements for testamentary capacity include:
- That the testator was at least 18 years of age or older at the time of execution; and
- They were of sound mind. This means that they understood the nature of the will document and that they knew that what they were drafting was a will.
2.Testamentary Intent: The person creating the will must have the present intent to make one. A will may be denied during the probate process if a challenger can prove that at the time of the execution the testator lacked testamentary intent. Testamentary intent may be tainted if it can be shown that the testator was coerced, under duress, or was subject to undue influence.
3. Other Formalities Required for a Will: Courts are very strict when deciding whether or not a will was properly drafted. Other requirements that can help prove that a will complied with formalities include that it must:
- Be in writing and signed by the testator (including both a formal signature or simply their initials).
- Some state laws require that the testator’s signature be completed in the joint presence of two disinterested witnesses.
- All states require that the will must be signed generally by at least two witnesses before the testator becomes deceased. The witnesses do not need to sign at the same time, nor in front of one another. However, they must sign in front of the testator.
- The witnesses who sign the will must understand that the document they are signing is the testator’s will.
- The witnesses must also be competent at the time of signing. In some states, this means that the witness must be disinterested (i.e., not a person who benefits from the will), and if this occurs, the witness must prove that they did not have any involvement with the execution of the will.
4. Harmless Error Doctrine: If the will fails due to the witness requirements, the will may still be able to be admitted in probate if the party challenging the will can prove by “clear and convincing evidence” that at the time of execution, the testator intended the document to be their will. Oftentimes, this is difficult to prove.
Can I Handwrite My Will?
A will that is drafted by the testator by hand (as opposed to a typewritten document) is called a holographic will. Holographic wills are recognized by the law, but they must follow certain requirements to be considered valid and the state where it is drafted and applies must be one that allows holographic wills under its statutes; not every state permits them.
Other requirements of a holographic will include that the testator must have signed it, the provisions of the will are made in the testator’s own handwriting, and the testator must have had the capacity and intent at the time the holographic will was executed.
Additionally, a codicil may also be handwritten. A codicil to a will is simply an amendment to an already existing will. It must follow all of the requirements for drafting a will in general, and also comply with any of the requirements necessary for recognizing a handwritten will.
Can a Will Be Revoked After Being Executed?
Your will cannot be revoked after it has been carried out (meaning you have died and the wishes if your will have been followed).
However, it is possible for the testator to revoke their will, so long as it is done before their death. This is true even if the testator formed a contract or promised that he would not revoke it.
There are several ways in which a testator can revoke a will, such as by:
- Creating a new will that differs from their original one (note that it must comply with all of the requirements for drafting a will);
- The physical act of cancelling, burning, or some other method that voids the will under the law;
- Getting a divorce, since this act automatically removes a spouse from a will; and
- Partially revoking some portions of the will.
However, to be sure if your will was properly revoked, it is best to check your local probate codes and consult a local estate lawyer. While probate laws tend to be the same or similar throughout the country, they can vary in significant ways.
Should I Hire a Lawyer for Help with Writing a Will Document?
Although the above discussion provides many of the primary requirements for drafting a valid will, it does not include all of them. There are also estate laws and other state statutes that must be taken into consideration. Therefore, if you want to draft a will, you should strongly consider speaking with a local estate lawyer.
An experienced estate lawyer will be able to help you draft, edit, and review your will, and can even revise one that is already in existence.
In addition, if you need to update, make changes to, or revoke your will, a lawyer will be able to efficiently guide you through this process as well.