Executing a Will

Executing a will is the technical term for signing a will and making it legally binding.

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Executing a will is the technical term for signing a will and making it legal.

To execute a will in any state in the United States, you must 1) sign the document while you have capacity to know what you’re doing, and 2) have two people sign the will as witnesses.

No state requires you to have your will notarized, although there is an advantage to doing so in some states.  See “Self-Proving Affidavits,” below.

Having Capacity

When you sign your will you must have legal “capacity” to do so.  This is commonly known as “being of sound mind.”   It means that you must understand what property you own, what your family relationships are, and the effect the document will have when you die.  This is not a high bar to reach. You can be forgetful or slow or physically unwell and still have the capacity to make a will.  However, capacity is one area that is commonly contested. So if you have concerns about your capacity, or if you think that someone might challenge whether you had capacity when you signed your will, see a lawyer for help.

Who Can Be a Witness

In every state, your will must be signed by two adult witnesses.  Your witnesses should not be beneficiaries of your estate – meaning, they should be someone who will get nothing from your estate when you die. Also, choose witnesses who are likely to be around when you die, because the probate court may need to contact them after your death. 

Signing the Will

Executing your will won’t take long, but there are a few steps:

Prepare your will. Before you sign your will, read it carefully to make sure that you understand every word, that there are no typos, and that it reflects your wishes. If you have any questions, talk to your lawyer. Or if you made your will yourself, consult the help or instructions that came with your will.

Gather your witnesses. When you’re sure your will is correct, gather your witnesses together – you should all sign your will at the same time.  Not all states require you to do it this way, but it’s better if you do.

Say “this is my will.” Your witnesses do not need to know or see the contents of your will, but you do need to declare to them that you intend the document to be your will.

Initial each page.  Put your initials on each page of the document, and then ask your witnesses to do the same.  This makes it impossible for anyone to slip in another page at a later date.

Sign and date at the end.  After the last clause of the document, sign your name and write the date. And if you name is not typed there, print your name as well.  Then ask your witnesses to sign.  They should also print their names and include their current addresses.

Your will is now executed.

Self-Proving Affidavits

Most states allow you to attach a “self-proving affidavit” to your will.  A self-proving affidavit allows your will to be “proven” to the probate court without your witnesses having to testify.  This may cause your executor some trouble when it comes time to probate your estate. So if possible, it’s a good idea to include a self-proving affidavit with your will.

The self-proving affidavit itself is a brief statement that says that the will was property executed. It is signed by you and the witnesses and then notarized by a notary public.  

If you decide to use a self-proving affidavit, you and your witnesses must go to the notary public together. (Or have the notary come to you.)  You all must sign at the same time.

To find a notary public, use the yellow pages or do an online search for notaries in your area.  Also, banks, real estate offices, and mail-box services often have notaries onsite.  Notaries usually charge a modest fee for their services, though they may charge significantly more if you hire a mobile notary to travel to you.

Learn more about wills on the Wills, Estate & Estate Planning section of Nolo.com.

by: , Attorney

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