While each state has its own requirements for drafting, executing and probating wills, many of these requirements are similar across every state. It is important to know and understand these requirements before drafting and filing your own will. If your will does not meet these standards, your estate could face a lengthy legal battle to determine whether your will is legally valid. If your will is declared invalid, the court may administer your estate according to your last previous will or, worse, subject your estate to intestacy probate.
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Before a testator can establish a will, he must possess testamentary capacity. Each state defines the requirements for testamentary capacity, but in general, the testator must be at least 18 years of age and of sound mind to qualify. The testator must also choose to establish the will himself and be free from coercion or duress at the time he drafts it. Otherwise, the validity of the will may be contested and the adjudicating court can void the will, subjecting the estate to intestacy probate. Some states will waive the age requirement for minor testators who are legally emancipated, whether by parental emancipation, entering the armed services, legally marrying or becoming the parent to a minor child. However, qualifying testators must still prove they possess the requisite mental capacity to establish a will and must still follow the remaining requirements to establish a will.
All states universally require testators to execute a will in writing, either typed or handwritten. The will should clearly identify the testator’s name at the top, renounce all previous wills and codicils, appoint an executor, list the estate’s assets and name the estate’s beneficiaries. Once finished, the testator must proof the will by signing his name at the bottom in the presence of at least two attesting witnesses. Absent one or more of these elements, the will could be ruled invalid and set aside during probate.
Declaration & Revocation
The very first element a will should include is the testator’s declaration, which should state that the document is the testator’s final and only will. The testator should also swear within her declaration that she possesses the statutory and mental capacity to establish a will, and that she is doing so absent undue influence, duress or coercion. After the declaration, the testator should revoke all prior wills and codicils she previously executed, even if she never established a will in the past. Doing so will reduce the chance that another party could submit a fraudulent or outdated will as the testator’s genuine will.
After stipulating the executor appointments, property division, beneficiaries and any other instructions for the estate, the testator must proof the will by signing the bottom in the presence of at least two attesting witnesses. Both witnesses should also sign the will in the presence of the testator and each other. In lieu of two witnesses, many states also permit testators to submit their will to a notary public for notarization. A few states also allow self-proofed or “holographic” wills, which is a will written entirely in the testator’s own hand and signed only by the testator, although you should always review your state’s probate code before opting to execute a self-proofed will.