A last will and testament, otherwise known simply as a will, is a way to dictate how your property and affairs will be handled after you die. All wills are different and what you include in your will depends on what property you have, whom you want it to go to, the dynamics of your family and friends, and many other factors unique to your particular situation. However, all wills are required to have particular features in order to be valid and wills are only able to accomplish certain things. This guide reviews the essentials of writing a valid will and explores the limits of what it is and is not possible to do using a will. As estate planning and will writing are heavily affected by state laws, it is always a good idea to contact a lawyer with any specific questions you may have about how your state's laws will affect your will.
To be valid, your will doesn't have to conform to a specific formula. For example, in states that recognize handwritten wills, some wills scrawled on the back of an envelope have stood up in court. However, there are certain elements that must usually be present.
In most states, you must be at least 18 years old to make a will. In Georgia, you only need to be 14 years old, in Louisiana 16 years old, and in Alabama, Alaska, and Wyoming, you must be 19 years old. There is no upper age limit; as long as a person has necessary mental capacity, they can make a will. A person under the required age usually must go to court and get a guardian appointed to make a will for them.
Thought the popular phrase is "of sound mind and body," there is no requirement that you have a particular physical body in order to make a will. However, there is a very important requirement that you have what is known as the mental capacity or mental competency to make a will. The law presumes that will maker was of sound mind, and the standard for proving otherwise is very high -- much more than normal absentmindedness or forgetfulness. Being of sound mind to make a will does not mean that you must be perfectly sane, have a clear and unfailing memory, or otherwise have the same mental sharpness you had when you were 18 years old. You only need to know that you're executing a will, have a basic understanding of the general nature and extent of your property, and be aware of the objects of your bounty or the natural objects of your affection (i.e. your spouse, descendants, and other relatives who would ordinarily be expected to share in your estate). You must be able to put these factors together and form an orderly plan as to who gets what.
Your competency to make a will is determined by your mental state at the time you sign your will. A person who is insane may become sufficiently lucid to make a will and then again lose touch with reality. As long as the will was made during a period of mental lucidity, it is valid. Suppose a person is in the early stages of Alzheimer's disease and makes a will. There is no question that the person had the requisite mental capacity to make the will at the time they signed it. But suppose their condition deteriorates and they lose all of their mental faculties. Is the will still good? Yes, since losing mental capacity some time after the will is made doesn't matter. It only becomes important if the person tries to revoke or amend the will after becoming mentally incompetent. The person who indulges in alcohol or drugs, even in excess, the eccentric who exhibits bizarre behavior, the older person who has the occasional memory lapse -- all may at times have sufficient capacity to make a will.
Disgruntled friends or relatives who want to challenge a will occasionally use this sound mind requirement to attack the will maker's mental capacity. To defend against this attack preemptively, in special cases, the execution or signing of the will is sometimes videotaped and kept on file. So, if someone raises a question after the will maker dies, the videotape can be good evidence that the will maker was of sound mind and knew what they were doing when they made their will. Of course, if the will maker is in the last stages of a debilitating illness, a videotape might have the opposite effect and appear to show lack of capacity.
The will must have a substantive provision that disposes of property, and it must indicate your intent to make the document your final word on what happens to your property. In short, it must be clear that you really intend for it to be your will.
Although oral wills, if witnessed, are permitted in some states, wills must usually be written, either by hand or, more commonly, typed, and witnessed.
You must voluntarily sign the will, unless illness, an accident, or illiteracy prevents it, in which case one of your witnesses may sign for you. Without a signature, your will is invalid and does not carry any force.
In almost all states, the signing of a formal will must be witnessed by at least two, but often three, adults who understand what they are witnessing and are competent to testify in court. In most states, the witnesses have to be disinterested (i.e. not getting anything in the will). If they aren't, you run the risk of voiding certain provisions in the will, opening it up to a challenge, or invalidating the entire will.
Your will should contain a statement at the end attesting that it is your will, the date and place of signing, and the fact that you signed it before witnesses, who then also signed it in your presence. Most states allow what are commonly known as self-proving affidavits, which eliminate the necessity of having the witnesses go to court to testify that they witnessed the signing; the affidavit is enough proof by itself. In other states, if the witnesses are dead or otherwise unavailable, the court may have to get someone else to verify the legitimacy of their signatures.
Though the above requirements are best practices for writing a will, not all wills follow these formalities. Depending on the state, the law might recognize certain kinds of other wills in special situations. However, you're always safest with a written will that's properly signed and witnessed. Some types of non-standard wills include:
Before sitting down to make your will, you have to figure out what you own and how you want to distribute it. If something is your own personal property, you have the right to dispose of it any way you want. However, if you own property jointly with someone else, you can give away only your share in that property.
You cannot give away property that is subject to a contract. For example, what if you want to give the proceeds of your life insurance policy to someone other than the policy's named beneficiary? Even if your will gives the life insurance proceeds to someone else, the beneficiary named in the policy will get the money. The terms of the policy -- a contract -- control the distribution of the money. If you want the proceeds to go to someone other than your currently named beneficiary, you'll have to contact your insurance agent and submit a change of beneficiary form. This same idea applies to retirement benefits, IRAs, deferred compensation plans, and similar accounts or employee benefits.
Generally speaking, you have the right to give your money to anyone you want. If you give your property to minor, however, a guardian will have to be appointed to manage the property until the minor turns 18 (19 in a few states). Some restrictions may be placed on gifts to charities, religious institutions, or animals.
In general, you can pick whom you want your property to go to and leave it whatever proportion you want. There are some exceptions, however, related to what a spouse is required to inherit. For example, in some states a surviving spouse may be entitled to a predetermined percentage of their deceased spouse's estate, regardless of what the will says. This right is called a statutory or elective share. The amount of this percentage varies by state, but in most states it is one-half or one-third of your estate. You or your spouse can voluntarily give up this legal protection in a prenuptial agreement. In some states, surviving spouses are also entitled by right to the shared family home as what is known as a homestead right. Though you can try to give the family home to someone else in your will, your spouse has to approve. Without approval, your spouse will retain the property until they die or abandon the homestead.
As for other family members, only in Louisiana do your children have any right to be included in your estate. Otherwise, you can disinherit anyone other than your spouse. However, if you're disinheriting a very close family member, rather than just leaving them out of the will, it is best to specifically state that you wish to disinherit them in a clause in the will itself.
Some states do not allow gifts to religious or charitable institutions if the will was made less than a certain period of time, such as thirty days or six months, before the person died. What happens to the gift in that case? It goes to the person named in the residuary clause of the will (e.g. a clause that dictates who will receive the parts of your estate that were not given away in a specific gift, basically the leftovers of the estate), or to your next of kin if there is no residuary clause. The state you live in may also have a law limiting the amount of your estate that the charity or religious institution can receive -- for example, one-fourth or one-third of the estate.
One usual restriction imposed on all gifts to charities or religious institutions is the requirement that the recipient be a bona fide, legitimate organization. A gift of $100,000 to, for example, the Sisters of Perpetual Indulgence would probably be void in all states.
Every now and then, you read a story online or hear on the television news about an eccentric millionaire who has left the entirety of their estate to a favorite dog, cat, bird, or other pet in their will. Is such a gift valid? Usually no. A gift of money or property to a pet does not hold up legally, for the simple reason that a pet is legally incapable of holding title to property. A cat cannot own a house, a dog cannot own a car, a bird cannot own a bank account, and a hamster cannot get a social security card. To get around this, some people nominate a human as "guardian" of the pet, and occasionally a court will uphold this. Instead of attempting to give your money to your pet, an alternative is to discuss the matter with the person you would like to take care of your pet in case anything happens to you, and leave them a gift to cover food, veterinarian bills, and the like. You may also want to consider making a gift of part of your estate to your local humane society.
Some people try to make their influence felt beyond the grave by attaching conditions to a gift made in the will, as opposed to the purely advisory language in a letter of intent. These conditional gifts can be tricky and ill-advised. Most courts don't like such conditions and tying conditions to a gift often makes the will more susceptible to being challenged. You can't require your daughter to divorce her husband to claim her inheritance from you, nor can you force your atheist son-in-law to go to church every Sunday in order to get what you've left them in your will.
Wills are incredibly flexible and made to cover a range of situations as vast as the unique differences between people. That being said, all wills that are made are required to have particular elements by which a court is able to judge that they were correctly and validly made. Further, while wills are very powerful, they only have the power to do so much. The most important points to remember about wills are as follows:
About the Author: Malissa Durham is a Legal Templates Programmer and Attorney at Wonder.Legal and is based in the U.S.A.