The requirements for a written will are pretty much uniform across all states. You must be of sound mind when you create it, which means you know what you’re doing, why you’re doing it, and your relationship with the people to whom you’re giving your property. Two or three -- depending on your state -- competent witnesses must watch you sign and date your will, and then sign it themselves after you explain to them that it’s your will. After your death, your witnesses will have to attest that they did this. They can appear in court and testify to it, or they can sign a self-proving affidavit that you can keep with your will so the court won’t later have to take their statements. Some states have rules that your witnesses can’t also be beneficiaries.
Approximately half of all states allow you to write your will by hand. If you do this, some jurisdictions waive the witness requirement. You must personally sign and date the document, and no portion of the will can be printed -- the whole thing must be in your handwriting. Handwritten wills, called holographic wills, can be a bit risky because your loved ones and the court may not accurately understand your wishes and intentions if your penmanship isn’t good. Another consideration is that after your death, someone will have to testify in court that the will is indeed in your handwriting.
Less Risky Options
You can purchase kits and software online or at office supply stores -- and they can guide you as to what you should include so you don’t overlook anything. But take care to make sure that the kit is specific to your state, otherwise you might end up with something that your local court can't accept for probate. A handful of states even recognize statutory wills, which are fill-in-the-blank forms where you can simply write in your personal details and wishes. If your state offers this option, you can usually get the form by visiting your county’s probate court or go to your state’s judicial website. Keep in mind that these are one-size-fits-all documents, and you typically cannot tailor them to your specific concerns if you have any. Call your state's probate court or visit its judiciary website to find out what's permissible and available in your state.
If your estate is complicated, you might want to have a lawyer look over your finished will to make sure you’ve done everything correctly and you haven’t broken any rules regarding the persons to whom you’re leaving your property. For example, in most states, you can’t disinherit your spouse. If you try, it won’t necessarily invalidate your will, but you spouse can take a portion of your estate anyway, regardless of what you said in the document. A lawyer can explain what the rules are in your jurisdiction so a simple misstep won’t throw your entire estate plan into chaos. A professional can tell you if your wishes are made clear or if they’re legally ambiguous and might cause potential problems after your death. Another option is to consult with a lawyer before you start writing the document so you understand what you can and cannot do.
- r_drewek/iStock/Getty Images