About Wills

Making a will is an excellent way to ensure that your plans for leaving property to family, friends and organizations of your choice are carried out after you die. You can efficiently and safely write your own legal will using WillMaker. But before you start, it is a good idea to read this article as well as Is the WillMaker Will Right for You?

Legal Requirements

For a will to be legally valid, both you—the person making the will—and the will itself must meet some technical requirements.

Who Can Make a Will

Before you start your will, make sure you qualify to make one in the eyes of the law.

Age

To make a will, you must either be:

  • at least 18 years old, or
  • living in a state that permits people under 18 to make a will if they are married, in the military or otherwise considered legally emancipated.

Mental Competence

You must be of sound mind to prepare a valid will. The laws generally require that you must:

  • know what a will is, what it does and that you are making one
  • understand the relationship between you and the people who would normally be provided for in your will, such as a spouse or children
  • understand the kind and quantity of property you own, and
  • be able to decide how to distribute your belongings.

This threshold of mental competence is not hard to meet. Very few wills are successfully challenged based on the charge that the person making the will was mentally incompetent. It is not enough to show that the person was forgetful or absentminded.

To have a probate court declare a will invalid usually requires proving that the testator was totally overtaken by the fraud or undue influence of another person—and that person then benefited from the wrongdoing by becoming entitled to a large amount of money or property under the will.

Interestingly, the great majority of undue influence contests are filed against attorneys who draw up wills in which they are named to take clients' property. If a person was very old, ill or suffering from dementia when making the will, it is obviously easier to convince a judge that undue influence occurred.

If a Contest Seems Possible

If you have any serious doubts about your ability to meet the legal requirements for making a will, or if you believe your will is likely to be contested by another person for any reason, consult an experienced lawyer.

Will Requirements

State law determines whether a will made by a resident of the state is valid. And a will that is valid in the state where it is made is valid in all other states.

Contrary to what many people believe, a will need not be notarized to be legally valid. But adding a notarized document to the will verifying that the will was signed and witnessed can be helpful when it comes time to file the will in probate court. This option is available in all but a handful of states. See The Self-Proving Option.

There are surprisingly few legal restrictions and requirements in the will-making process. In most states, a will must:

  • include at least one substantive provision—either giving away some property or naming a guardian to care for minor children who are left without parents

be signed and dated by the person making it

  • be witnessed by at least two other people who are not named to take property under the will, and
  • be clear enough so that others can understand what the testator intended. Nonsensical, legalistic language such as: "I hereby give, bequeath and devise" is both unwise and unnecessary.

Dying Without a Will

If you die without a valid will, money and other property you own at death will be divided and distributed to others according to your state's intestate succession laws. These laws divide all property among the relatives who are considered closest to you according to a set formula—and completely exclude friends and charities.

These legal formulas often do not mirror people's wishes. For example, dividing property according to intestate succession laws is often unsatisfactory if you are married and have no children, because most state laws require your spouse to share your property with your parents. The situation is even worse for unmarried couples. Except in a few states, unmarried partners receive nothing. And even in the states that offer exceptions, benefits aren't automatic—eligible couples must register their partnerships with the state.

Learn more about intestate succession. You can read more about intestate succession—including detailed information about the laws in your state—at www.nolo.com/legal-encyclopedia/intestate-succession.

Also, if you have minor children, another important reason to make a will is to name a personal guardian to care for them. This is an important concern of most parents, who worry that their children will be left without a caretaker if both parents die. Intestate succession laws do not deal with the issue of who will take care of your children. When you don't name a guardian in your will, it is left up to the courts and

Making Basic Decisions About Your Will

Making a will is not difficult, but it is undeniably a serious and sobering process. Before you begin, get organized and focus on these important questions:

WillMaker offers guidance on how to use WillMaker to give legal effect to your decisions in all of these areas. The ultimate choices, however, are up to you.

Making Your Own Will

As a way to decide who gets your property, the will has been around in substantially the same form for about 500 years. For the first 450 years, self-help was the rule and lawyer assistance the exception. When this country was founded, and even during the Civil War, it was highly unusual for a person to hire a lawyer to formally set out what should be done with his or her property. However, the legal profession has since convinced many people that writing a will without a lawyer is like doing your own brain surgery.

In truth, the hardest part of making a will is figuring out what property you own and who will get it when you die—questions you can answer best. Our will-making program, which has been in wide and successful use for over three decades, prompts you to answer the right questions—and produces a will that fits your circumstances and is legal in your state.

But you may have a question about your particular situation that WillMaker does not answer. Or perhaps you have a very large estate and want to engage in some sophisticated tax planning. Or you may simply be comforted by having a lawyer give your WillMaker will a once-over. Whenever you have concerns such as these or simply feel that you are in over your head, it may be wise to consult an attorney with knowledge and experience in wills and estate planning.

Helping Someone Else Make a Will

You can use WillMaker to help a loved one or friend make a will. But you must be sure that your role is only to type in the will maker's wishes. In other words, the will maker, not you, must decide on the terms of the will. If your role exceeds these limits, a court could declare the will invalid—and you may even face legal charges.

If you decide to help someone else prepare a will, you may want to take an extra step to document your role: Make an audio or video recording of the process or ask someone else to be present as a witness while you follow the will maker's directions.

EXAMPLE: Betty asks her neighbor, James, to help her make her will because her hands shake too badly to type her responses into the program. She dictates her answers to James and he types them in at her direction. She also tells James to print out the document for her to sign. For extra security, Betty's friend Wendy watches as a witness so she can later testify to James's role, if necessary.

If the person you want to help cannot clearly direct the will-making process, or if you have any concern that the person may not fully understand what it means to make a will, see an experienced estate planning attorney for help.

Types of Wills

Handwritten and Oral Wills

In about half the states, unwitnessed, handwritten wills—called holographic wills—are legally valid. And a few states accept oral wills under very limited circumstances, such as when a mortally wounded soldier utters last wishes.

But handwritten wills are fraught with possible legal problems. Most obviously, after your death, it may be difficult to prove that your unwitnessed, handwritten document was actually written by you and that you intended it to be your will. And it may be almost impossible to prove the authenticity of an oral will.

A properly signed, witnessed will is much less vulnerable to challenge by anyone claiming it was forged or fabricated. If need be, witnesses can later testify in court that the person whose name is on the will is the same person who signed it and that making the will was a voluntary and knowing act.

Electronic Wills

Electronic wills are made, signed and witnessed electronically, with no need for paper. Currently, only a few states have adopted laws to allow electronic wills. More states are sure to follow; however, until these new laws settle and a majority of states have figured out how electronic wills will work (both practically and legally), stick to making your will on paper.

Learn more about making wills on Nolo.com.