What Are the Forms for a Last Will & Testament?

By Teo Spengler

At common law, testators prepared a will to pass real property and a separate testament to pass personal property. Modern statutes do not distinguish between the terms. A last will and testament is a single document describing your property and who you wish to inherit it at your death. States do not mandate the use of any particular will form as long as the testator's will includes all elements required by each state's laws.

Testator Identification and Capacity

A last will and testament identifies the person making the will, usually by full name, address and phone number. Typical will language states that the testator is of legal age and sound mind, but this verbiage is superfluous. The court makes an independent determination of legal age -- in most states 18 years old -- and presumes that an adult is of sound mind. Anyone challenging mental capacity bears the burden of proof.

Devises and Bequests

A will's primary purpose is to identify the testator's heirs. If a testator leaves everything to one heir or several heirs in percentage shares, she need not describe her property. A will bequeathing particular items of property to specific heirs identifies the heirs by full name and address. It also describes each item of property sufficiently to facilitate identification. Will language can condition bequests upon the heir outliving the testator; if it does so, the testator names alternate beneficiaries to receive the property if the condition fails.

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Nomination of Executor and Guardians

Executors administer last wills through the probate process, collecting assets, locating heirs and liquidating property. Many testators appoint executors in last wills, but this is not necessary for will validity. The court appoints someone to administer the will if no executor is named. Similarly, probate statutes do not mandate parents to nominate guardians for minor children in their wills, though wills commonly name both a guardian to care for the children and a separate financial guardian to handle their money until they reach the age of majority. The court appoints a guardian if no guardians are named in the will.

Execution

A will must be signed according to state procedures, termed "executing" the will. Most states require that the testator tell two adults that the document is her will, then sign it before them. Each witness also signs the will. In probate court, the witnesses prove the will by describing the testator's actions. Some courts invalidate the will if the witnesses are also heirs. Those states permitting holographic wills, or wills written entirely in the testator's handwriting, dispense with the witness requirements.

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How Can I Do My Own Will?

Less than half of American adults have wills. One reason for this low figure might be the common perception that wills are complicated and expensive to prepare. Although large and complex estates may require estate-planning services and legal advice, many people with smaller holdings use simple testaments. All jurisdictions accept self-drafted testaments that meet probate requirements. Some states -- such as California -- make it easy for people to draft their own wills by providing a valid form will in the statutes and allowing handwritten wills.

Rules for Witnessing a Will

A last will and testament is a powerful legal document that instructs the executor of an estate how to distribute the property of the writer of the will, known as the testator, after he dies. Because of the potential and motivation for fraud, state governments have passed laws imposing strict restrictions on the format of a will. All states require that the testator's signature be witnessed.

Self-Proving Will Statutes in New York

Writing a valid will ensures that your property is divided according to your wishes. If you fail to make a will, or if you do not sign it properly, the state authorities will make those decisions on your behalf. To be legally valid, a will should be signed and witnessed in accordance with state laws. A self-proving will contains a certification that the will has been properly executed and makes the probate procedure more straightforward. Article 3 of the New York Code sets out the laws relating to signing wills in the state.

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