What Makes a Will Legal?

What Makes a Will Legal?

by Roberta Codemo, December 2015

A will carries out the final wishes of the testator – the person who makes a will -- after death. State law sets out the criteria for what makes a will legal. The process for how to make a will legal varies state by state. When you make a will, follow this checklist to ensure it is a legally binding will that the courts in your state will recognize.

What Are The Elements Of A Will?

Legal wills must be in writing. Only about 25 states recognize handwritten, or holographic, wills. Holographic wills must be written and signed in the handwriting of the person drafting the will and, in some states, dated. An oral will – also called a nuncupative will – is accepted by a few states under limited circumstances, such as on your deathbed.

The body of a will includes:

  • The names of the individuals that you are bequeathing your assets to, such as your spouse, children and friends. If you are excluding someone from your will, include a statement to that effect.
  • The name of the guardian for your minor children.
  • A list of assets and instructions for their disposition, with a few caveats. For example, if you own property as joint tenants with right of survivorship, the property passes to the surviving owner after your death. Likewise, an insurance policy passes to the designated beneficiary, regardless of your will.
  • The name of the executor and an alternate. 

Note. Video wills are becoming popular, however, consult an attorney before making a video will because not all states recognize them. Generally, a video will supplements a written will.

Who Can Draft a Will

Most people can create a basic legal will online without the help of an attorney. As long as the will meets the legal requirements of your state, it is valid. If you choose to do-it-yourself, there are a number of good legal will form templates available when creating legal wills online. Make sure the software is up-to-date and uses clear, unambiguous language to describe your wishes and helps you decide what to include in the will.

It is best to consult an attorney, however, if the will involves complex issues. An invalid or contested will can have far-reaching consequences.

How to Execute a Will

A will must meet technical requirements established by state law to be legally enforceable by the courts. When executing a will:

  • The person must be 18 years old or older and have testamentary capacity to sign the will. Testamentary capacity means the testator (person making the will) is of sound mind. In short, you must understand that you are making a will, the nature and size of your estate, the terms of your will and its effect and agree that it fulfills your wishes. 
  • The testator must voluntarily enter into and sign the will free from duress or coercion. 
  • The will must be signed and dated by the testator before two disinterested adult witnesses who are not beneficiaries under the will and who can attest to the testator’s identity and state of mind. Vermont and New Hampshire require three witnesses and Puerto Rico requires three witnesses plus a notary public. The witnesses also sign the will in the presence of each other.
  • The will must contain a statement attesting that it is your last will and testament, the date and place of signing and that you signed it before witnesses who also signed it and watched each other sign it in your presence. 

While state laws do not require a will to be notarized, the will becomes “self-proving” if the signatures of the testator and witnesses are notarized. By signing an affidavit before a notary public, all parties attest each witnessed the signing of the will. The affidavit can be submitted in court after you die without having the witnesses appear.

You don’t have to file your will with the state. Just keep it in a safe place and make sure that the executor of your estate knows where it is.

The steps required to legally execute a will are relatively simple and straightforward. While probate laws vary state by state, the requirements set forth are generally accepted by all states. Whether you choose to draft your own will or seek the advice of an attorney, having a legal will in place after your death ensures that your wishes are carried out after your death and saves your family additional stress in their time of distress.

If you are ready to create a last will, LegalZoom can help. Get started by answering a few questions in our online questionnaire. Creating a will through LegalZoom is easy and affordable.