Creating a Will

A will is a very important step in managing an individual’s estate. It is a legal instrument that outlines how the decedent, or testator, wishes for their property to be distributed. A testator is an individual who creates a will. Once they have passed away, they may also be called the decedent. Most wills name an executor, or individual appointed to oversee and manage the estate.

Drafting a will generally involves a great amount of planning and evaluation of an individual’s property. It also includes decisions regarding who will be receiving the party. An individual who receives property in a will is known as a beneficiary.

When an individual is creating their will, they may wish to consider the following:

• It is important to understand who may create a valid will. Only an individual with testamentary capacity can create a valid will. This means the individual drafting the will is:
  • Over the age of majority;
  • Aware that they are creating a will to distribute their property and they understand what they are distributing and to whom;
  • Names the recipients of the property; and
  • Married or is in the military.
• It is very important to carefully and clearly name beneficiaries. Properly naming beneficiaries can prevent future disputes or will contests. For example, instead of saying, “my car goes to my sister,” the testator should state, “my car, a red corvette, shall go to my sister, Mary Jane Smith.”
• Select a trustworthy executor. This individual will be in charge of paying debts and distributing property. It is important to choose an individual who is aware of the testator’s intentions and desires.
• Clearly identify the property to be distributed. Each piece of property should be identifiable from the will document. If it cannot be identified, it may lead to disputes or will contests.
• Consider having back up individuals for important positions such as executor and guardians of children. For example, a brother of the testator may be named as executor. If the testator has the same will for many years, there is a chance the brother may predecease the testator. If this occurs, the court will choose the executor after the testator passes away and the court may make a choice the testator would not have.

One of the most important aspects of creating a will is ensuring that it is written in such a way that it is easily understood and will not lead to will contests. It is important to note that every state has its own requirements for a valid will, so a testator should consult with an attorney to ensure their will is properly drafted.

What is Required for a Valid Will?

There are several requirements for a valid will. As noted above, these may vary by state so it is important to have an attorney assist with will drafting.

A self-proving will is the most common type of will that is created. It is one that has been witnessed and signed in accordance with the state law formalities where the testator resides. For example, in New York, the following will formalities must be followed:

• The testator must be 18 years of age or older;
• The testator must be of sound mind at the time they create and sign the will;
• The testator must intend to make a will;
• The testator must sign and date the will. Another individual may sign and date the will if the testator is unable to do so but they must be in the testator’s presence and be directed to do so; 
• The signature must appear at the end of the will;
• The testator must declare that the will is their will and sign it in the presence of two witnesses, or acknowledge their signature to the witnesses. The declaration or acknowledgement may be done at the same time or it may be done at separate times;
  • In some states, the witnesses must sign the will while in the presence of the testator. In other states, the witnesses must sign the will, one following the other;
• The two witnesses must sign the will within 30 days after the signature of the first witness.

Another type of will that may be created is called a holographic will. This type of will is written by the testator, but without any witnesses. In some states, a holographic will that is signed and dated by the testator is valid. 

However, not every state finds holographic wills valid so it is very important to verify with the local laws before relying on a holographic will. Most states that recognize such wills require that two or more individuals verify, or testify in court that the will is in the handwriting of the testator.

A third type of will a testator can create is an oral will. In this type of will, the testator orally communicates the terms to another individual. The majority of states do not recognize this type of will as valid, however, some exceptions apply. In some states, a will made by a deployed member of the military will be deemed to be valid by a court. 

What are Some Terms to Include in a Will?

It is important to include the terms for wills that are required by the state in which the testator resides. This usually includes:

• Naming beneficiaries;
• Naming an executor;
• Identifying property to be distributed; and
• Having the will signed and witnesses.

In addition to state requirements, there are other will terms a testator may wish to include, such as a no-contest clause or other clauses. A no-contest clause prevents a beneficiary from collecting their property distribution if they file a claim contesting the will. Other clauses may also address if the will can be modified and whether or not disputes should be resolved through negotiations.

In order for a will to be properly executed, it should have at least one provision that directs:

• The appointment of a guardian for children who are minors, if applicable;
• Which individuals are to receive what distributions;
• How to dispose of any property that is not specifically distributed; and
• The appointment of an executor to oversee the disposition of the estate, both property and debts, of the deceased individual.

Can a Will be Modified?

In general, yes a will may be modified. Modifying a will may be necessary in some instances to prevent an unwanted distribution of property. For example, the testator may make a document that adds to their current will, called a codicil, or may invalidate an old will and create a new one.  

Any will modifications must be executed with the same will formalities as the original will in order to be considered valid. In some cases, a court may order a will to be modified if the terms are found to be illegal or unfair to the beneficiaries. 

Do I Need a Lawyer for Help With Creating a Will?

Yes, it is essential to have the assistance of an experienced will lawyer when creating or modifying a will. There are many requirements to create a valid will, which vary by state. Having an attorney draft your will ensures that the requirements are met and all necessary clauses are included. 

An attorney can assist you with will codicils and revisions as well. Having an attorney draft your will may be the difference between your family members and loved ones receiving property as you wish and your estate not being distributed as you wish.