Wills: An Overview

Wills are legal documents that set forth how a person's property will be distributed after his or her death. They can also contain other provisions, including the appointment of a guardian for the will maker's minor children if there is no surviving parent. The person who makes the will is referred to as the testator, and they will have to follow legal requirements as determined by each state’s laws.

Legal Requirements of a Will

While each state has its own laws regarding the validity of a will, the variations for the most part are small. Some common requirements include the following:

Testator's Capacity

In general, a person has to be at least 18 years old to create a valid will. However, some states have exceptions for individuals who are younger if they are married or in the armed forces. Additionally, the testator must be of "sound mind." This generally means that the testator must have the knowledge that he or she is making a will, the effect that the document will have, the nature of the property that it covers and the parties that stand to benefit from it. The “sound mind” requirement is the basis of many will contests.

Disposition of Assets

The will must set forth at least one provision regarding who stands to inherit his or her property.

Declaration

The testator must declare that the document is his or her last will and testament. In wills that are written, a provision to this effect is usually included. However, some states also require the testator to verbally state as such in front of a witness.

Written

The majority of states require a will to be in writing. A few states do permit oral wills, but these are usually only permitted if very specific circumstances arise.

Signed

The will must be signed by the testator. However, if the testator is physically unable to do, some states permit the document to be signed by a witness.

Witnessed

Most states require that the signing of the will be witnessed by at least two individuals, and most require that witnesses be at least 18 years old. Some states require the witnesses to be disinterested, meaning that they do not stand to benefit from the will. Because they can be called upon at a later date to testify about their signatures and the testator's capacity, many witnesses submit an affidavit to this effect at the time the will is signed.

Executed

The will must contain a provision declaring where the will was signed, the date it was signed and that it was signed in the presence of witnesses.

Reviewing and Changing a Will

Testators may wish to review their wills at different points in their lives to ensure that the document properly communicates their wishes. For example, a testator may wish to add or remove heirs in the event of a later marriage or birth of a child. Or the testator may want to name a new executor in the event of the executor's death. There are a few ways that this can be accomplished.

One way to change a will is to revoke it in its entirety. This requires that the testator write "Revoked" on the will, tear it, burn it, obliterate it or otherwise take action that shows his or her intent to revoke the will. This is followed by the creation of a new will. The new document should contain a provision near its top stating that all prior wills are being revoked.

Another way to change a will is to make an amendment to it. The amendment is called a codicil, and it is often used to make a small change in the will, such as who will inherit a specific item. Codicils must be prepared and executed in accordance with the same state laws that apply to wills.

The information on this page is meant to provide a general overview of the law. The laws in your state and/or city may deviate significantly from those described here. If you have specific questions related to your situation you should speak with a local attorney.

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