When you make a will, you're taking control of how you'd like your assets to be distributed after your death. If you don't choose how to dispose of your property by leaving a last will and testament, the state in which you reside will choose for you. For many people, contemplating death is the most difficult part of making a will -- in other words, the act of making a will isn't as complicated as you might think. Specific laws and requirements vary somewhat among states, but the fundamentals and formalities are generally uniform throughout the country.
Testamentary capacity is required of will makers, known as "testators," in every state. The phrase "of sound mind" is frequently used to express testamentary capacity. Having a sound mind simply means that you understand why you're making a will and the general effect and significance of making it; and recognize not only the extent of your property, but the relationship that exists between you and your chosen beneficiaries.
In Writing and Signed
With few exceptions, states require wills to be in writing. Many states recognize handwritten wills as long as they're written entirely by the testator in his own hand. As a testator, you are also required to sign your last will and testament. Your signature is vital, as it serves as your formal acknowledgement of the significance of making your will.
Witnesses are almost always required for a will to be valid. This requirement is crucial because witnesses are needed to attest to the fact that you had testamentary capacity when making your will. Often, two witnesses are required and, in some states, these witnesses cannot stand to gain property, assets or other valuables from any of your will's provisions. This requirement is meant to decrease the chances of witnesses exerting pressure on you to include provisions that may be favorable to them. Depending on your state's laws, your witnesses may need to attach their signatures in your presence and right after you sign your will. In some states, witnesses are required to sign in front of each other as well.
Aside from will formalities such as testamentary capacity, writing, signature and witnesses, understanding what you may and may not bequeath is also vital. For example, if you're married, you may not completely disinherit your surviving spouse. If you live in a community property state, you may not bequeath more than your share of the community property. Generally, you're allowed to disinherit children, unless you're a resident of Louisiana. However, if you wish to disinherit a child, your will must state so expressly. Otherwise, it will be presumed that you omitted your child unintentionally, in which case your child will receive a portion of your estate as mandated in your state's laws of intestacy.