The Requirements for Last Wills Accepted in All 50 States

By Stephanie Kurose, J.D.

The Requirements for Last Wills Accepted in All 50 States

By Stephanie Kurose, J.D.

A last will and testament is a legal document typically created when a person wants to plan for what happens to their estate when they die. The person creating the will is the testator. The people designated to receive the testator's assets are beneficiaries.

Fountain pen sitting on last will and testament

Each state has its own set of legal requirements for the creation and execution of a will, as well as their own probate courts that interpret those laws. Therefore, it is important for you to refer to the specific laws of your state in order to create a valid will. However, while all 50 states have their own laws governing wills, some requirements are common throughout the country.

The most important part of creating a will is making sure it meets all of the requirements of a valid will. If a probate court finds that the will is either partially or wholly invalid, it can have devastating consequences for the estate distribution that may be entirely contrary to the testator's last wishes. If you want to create a will, you can find out whether your state has a sample template or utilize an online legal services provider.

Testator Capacity and Intent

Nearly all 50 states require the testator to be at least 18 years old in order to create a binding will. In addition, the testator must also be of sound mind, which essentially means they know what they are doing and have not been deemed incompetent in a prior legal setting.

The testator must also have the specific intent to form a will and dispose of their property through that will. To satisfy this requirement, a simple sentence at the beginning of the will stating the testator's name and their intent to create a will is sufficient. The testator must form a will voluntarily; if it is proven that there was any undue influence, force, or duress, a court may deem the will invalid.

Written Requirement

A majority of states require that a will be in writing in order to be valid. The testator can either handwrite or type the will. However, wills written entirely in the testator's handwriting often have additional requirements, such as witnesses who can testify in court as to the identification of the testator's handwriting.

Signature Requirements

States generally do not accept a will unless the testator has signed it, but most probate courts take a liberal view as to what constitutes a signature. For example, a court may accept an "X" mark next to the typed signature if that is all the testator can manage at that point. The key factor courts look to is whether the testator intended the mark to stand as their signature. If the testator is unable to sign or make a mark themselves, a proxy signature is generally valid if there are witnesses and the testator arranges for it.

Witnesses

Finally, most states require that at least two attesting witnesses be present when the testator signs the will. The witnesses must also sign the will in front of the testator. Further, many states require that attesting witnesses be disinterested, meaning that they have nothing to gain from the will itself.

Ensuring that your will is valid is crucial for estate-planning purposes. Although many requirements are common throughout all 50 states, you should verify that your will meets the specific laws of your state.

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.