Do You Need a Lawyer to Make a Will Legal?

By Stephanie Kurose, J.D.

Do You Need a Lawyer to Make a Will Legal?

By Stephanie Kurose, J.D.

You do not have to enlist the help of a lawyer in order for a will to be legal. However, an attorney can definitely be beneficial if you have children or a complex estate or are concerned about someone contesting your will after you die. Because state law governs the creation and execution of wills, an attorney may also be helpful to ensure your will is in compliance with state law.

Man in suit looking at documents with more casually dressed people on either side of him

Requirements of a Valid Will

Each state has its own rules governing the creation and execution of wills, so it is important to follow the specific rules of your state when doing so. Generally, however, there are common requirements across all 50 states.

Age and Competency

All states require that a person be at least 18 years old and of sound mind in order to enter into a valid will. They must be aware of what a will is and how it works, and they cannot have been found incompetent in a previous court proceeding.

Conveyance

In the majority of states, a will must be in writing (either handwritten or typed). Most states do not recognize oral wills or holographic wills (wills entirely handwritten by the testator with no witnesses present). While some states may recognize other forms of wills, the safest option is to execute the will in writing.

Witnesses

All 50 states require the testator and at least two witnesses to sign a will. Each of these signatures must take place in the presence of the three parties. Vermont requires a third witness, and Louisiana requires notarization for the will to be valid.

When an Attorney May Be Helpful

The creation and execution of a valid will does not require an attorney. However, there are some instances in which an attorney is a valuable resource.

Identifying Exempt Assets

Not all assets can pass to a beneficiary through a will. For instance, any jointly owned property, insurance policies, payable-on-death accounts, or assets placed in a trust already bypass the probate process, so a will cannot affect who receives such property.

Complex State Laws

While state laws governing wills may seem simple at first, there can be complex nuances accompanying each requirement. For example, state law can be very particular when it comes to who can serve as a will's executor or personal representative, who can be an attesting witness, and the procedures for amending or revoking a will.

Complex Estates

If a testator has a particularly large estate or has divorced or remarried, it may be helpful to hire an attorney. Such circumstances can impact the drafting of a will and require certain provisions that address the testator's specific concerns.

Severe Consequences of an Invalid Will

If a court finds a will to be invalid, either partially or entirely, there can be severe consequences that directly contradict the wishes of the testator. For instance, an invalid will can cause the court to distribute the testator's estate based on the state's default rules of intestate succession. This typically means that the estate goes to the nearest family member, regardless of the testator's wishes.

At attorney can help ensure that your will is legal and in compliance with state law. While making a valid will does not require a lawyer's assistance, a lawyer's help is certainly valuable in certain circumstances.

This portion of the site is for informational purposes only. The content is not legal advice. The statements and opinions are the expression of author, not LegalZoom, and have not been evaluated by LegalZoom for accuracy, completeness, or changes in the law.