Knowledge & Resources
Wills and estate planning
What a will does, how to write one, and what your state requires for it to count.
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Wills and estate planning
What a will does, how to write one, and what your state requires for it to count.
Most wills that fail do not fail because of what they say. They fail because of how they were signed, or because of who was standing in the room. Three things decide whether a will holds up, and none of them is about wording.
You need to be of sound mind when you sign: old enough under your state’s law, and able to understand that you are making a will, roughly what you own, and who would ordinarily expect to inherit. That is a lower bar than people assume. A diagnosis of dementia does not automatically remove capacity, and plenty of people make valid wills well into serious illness.
You also need to be doing it freely. A will signed under pressure from someone who stands to benefit can be set aside for undue influence, and that is among the most common grounds for a successful challenge. If someone is pushing you toward a particular decision, that is a reason to involve a lawyer who can record that you understood what you were doing.
Every state sets out how a will must be executed, and near enough everywhere that means: in writing, signed by you, in the physical presence of adult witnesses who then sign it themselves. Two witnesses is the near-universal requirement.
The detail people most often get wrong is presence. Witnesses signing separately, on different days, or after being handed the document later, is not what the statutes describe. Everyone should be in the same room at the same time.
A notary is a separate question, and a widely misunderstood one. In most states a notary is not required to make a will valid; where one appears it is usually for an accompanying affidavit that saves your witnesses from having to testify later. Check what your state actually requires.
Your witnesses should be people who inherit nothing under the will. In many states a gift to someone who witnessed the will can be void or reduced, and in others it raises a presumption that the gift was procured by pressure, which the witness then has to rebut.
It costs nothing to avoid. Ask a neighbour or a colleague rather than the children who are inheriting. Note this rule is about witnesses only: your executor can inherit and usually does.
A will reflects the day it was signed. Marriage, divorce, a birth, a death or a move to another state can all change what it means, and in some states marriage or divorce revokes parts of a will automatically.
If you write a new one, sign it properly and destroy the old copies. Two signed wills with different instructions is a worse outcome than one out-of-date will.
