Rules for Last Will & Testament

by Carrie Ferland

A last will and testament is a legal document that conveys the final wishes of an individual -- called a testator -- concerning the management and division of his estate and assets after his passing. State probate law defines the rules for drafting, executing and probating a will, and although these laws vary between each state, many of the requirements are similar.

Valid Formats

The most common format for a will is in writing, which is the only format that all 50 states and the District of Columbia collectively recognize. You may either type or handwrite your will, although a typewritten will is generally easier to read and interpret. Less common formats include the self-proofed -- or “holographic” -- will, which is a will entirely written and signed by your own hand in the absence of a viable witness; the videotaped will; the audio-taped will; and the oral will. Not all states acknowledge the validity of these formats; with the exception of the holographic will, very few states have enacted legislation explicitly recognizing these formats. If you intend to use one of these formats, review your state’s probate laws to ensure your state recognizes the form you choose before relying on it as your only will.

Declaration and Revocation

When drafting a will, the first section directly following your name should be your declaration and revocation. All states require testators to declare their will as their “final will and testament,” and to revoke any prior wills or codicils previously established. Always include a revocation, even if you never before established a will, to void the validity of any prior document or agreement into which you may have entered that could be mistaken for or fraudulently submitted as a will.

Requisite Sections

Including the declaration, a basic will must include five requisite sections. The remaining four are the appointment of the administrators; a definition of your familial relationships; a statement of your assets; and the naming of your beneficiaries. You must define these sections within your will for the state to recognize its validity; failing to address even one section could potentially void your will entirely. You can, of course, include additional sections -- such as guardianship of your minor children or funerary arrangements -- as needed to address your other requests.

Proofing and Witnesses

One of the most important parts of your final will is the “proofing” -- the attestation of other witnesses that your signature is valid and your state of mind was sound at the time you signed your will. Every state requires you to sign your own will yourself while in the presence of at least two witnesses, who must sign their names, as well. These signatures serve as proof that you created and executed your own will of your own volition, which is the only way to establish the will’s legal validity. Some states permit testators to seek notarization from a notary public in lieu of having their will proofed by two witnesses, but review your residential state’s probate code before doing so to ensure it is a permissible practice.