Most U.S. states have a handful of specific items that must be included for a will to be valid. These include items like a signature, the appointment of an executor, and at least one phrase distributing some or all of the estate, according to FindLaw. Although an attorney is not required to make a valid or legal will, an attorney can be helpful if you have children, a large estate, or are concerned about will contests after your death.
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Most states have only a few requirements for a valid will: First, the testator, or person making the will, must be at least 18 years old. Second, the testator must be mentally competent to make a will, which means that he is of sound mind and understands what a will is and how it works. Third, a legal will must name an executor, or a person who will carry out the instructions in the will after testator is gone, according to FindLaw. Fourth, the will must contain at least one instruction for the executor to carry out. Finally, a legal will must be signed by the testator and must contain some evidence that the testator means it to be his will, such as the phrase "this is my last will and testament," according to the American Bar Association.
In most states, a will must be written down in order to be valid, according to FindLaw. You may write your will by hand or type it on a computer, typewriter or word processor. Since the laws governing electronic wills, such as those saved as computer files, is vague and changing rapidly in many states, it is wisest to print out your will if you use a computer to create it, according to the American Bar Association. If you write by hand, you may start on a blank piece of paper or use a preprinted will form available from many stationers. A handful of states allow video wills, but usually these wills only supplement a written will and cannot serve as a legal substitute for a written will, according to the American Bar Association.
In all 50 U.S. states, a valid will must be signed by the testator and also signed by at least two witnesses, according to FindLaw. Like the testator, the witnesses must each be over the age of 18 and be mentally competent. In Vermont, a third witness is required, and in Louisiana, a notary must sign the will in addition to the testator and the two witnesses. To maximize the chances that you will may be found legal by the probate court, you should sign in the presence of your witnesses and the notary, who will then be able to sign and testify truthfully that they saw you sign your own will, according to FindLaw.
Although a will can be valid without an attorney's assistance, it is wise to consult an attorney when preparing your will for a number of reasons: First, not all property can be passed to a beneficiary through a will. Joint bank accounts, insurance policies and other assets may pass outside probate, which means your will cannot affect who gets them, according to the American Bar Association. Also, if you believe your beneficiaries may fight about your will after your death, an attorney can help you minimize the chances they will contest the will by including language that explains why you have excluded a particular beneficiary or by including a no-contest clause, according to FindLaw.
References & Resources
- FindLaw: How to Make Wills Legal Through Witnesses and Notarization
- American Bar Association: What a Will Does and Does Not Do
- FindLaw: Why it is Important to Have an Attorney Advise You Regarding Wills
- FindLaw: Wills FAQ
- American Bar Association: Video Wills
- American Bar Association: 10 Things Estate Planning Can Do For You
- FindLaw: When to Change Your Will
- American Bar Association: The Probate Process
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