What Is a Will?

Wills are what most people think of when they consider estate planning and certainly a vital part of any estate plan. Whether you also set up trusts and other vehicles for the transfer of your wealth, it is almost always a good idea to have a will as well. This post will discuss the basic requirements of a valid will.

A will is essentially a legal document (usually just a few pages) that specifies who will get your property when you die. A will should name:

  • Direct beneficiaries, the first in line to receive specific property named in the will
  • Alternate beneficiaries, in case the direct beneficiaries have already died, and
  • Residuary beneficiaries, those who will receive any property not specifically left to other beneficiaries.

A will is also useful for naming personal guardians for minor children and property managers for such children as discussed in a previous post.

Elements of a Valid Will

In order for a will to be legally enforceable by a court, the following must occur:

  • It must be written by someone 18 years or older.
  • It must be written by someone “of sound mind.” (Courts will assume this unless it is proven otherwise).
  • It must be typed. Only about half the states require a typed will but it is good practice to have it typed (instead of handwritten).
  • It must state that it is the deceased’s will.
  • It must leave some property to at least one beneficiary or name a personal guardian for minor children.
  • It must be signed and dated.
  • There must be at least two witnesses who watch the signing and then sign the will themselves. However, the witnesses need not know the contents of the will.

The witnesses to sign a “self-proving affidavit” to avoid any need for the witnesses to testify at later probate hearings.

As long as the requirements above are satisfied a will is valid and can be executed upon the maker’s death. Even in simple situations, it is advisable to consult with a lawyer to ensure that the will comports with the legal requirements and accurately expresses your wishes. It is critical to contact an attorney if you have complicated assets or estate planning needs, or fear that someone might contest your will, or you have a condition that raises concerns about your competence (such as mental illness or a debilitating disease).