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
- 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
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).