State Will Statutes

Last Will and Testament Checklist

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A last will or testament is a document by which a person (the testator) regulates the rights of others over his property or family after death.

Legal requirements for the creation of a will

Any person over the age of 18 can draft his own will without the aid of an attorney. Additional requirements vary, depending on the jurisdiction [State], but every will must contain the following:

  • The testator must clearly identify himself as the maker of the will, and that a will is being made; this is commonly called "publication" of the will, and is typically satisfied by the words "last will and testament" on the face of the document.
  • The testator must declare that he revokes all previously-made wills and codicils. Otherwise, a subsequently-made will revokes earlier wills and codicils only to the extent that they are inconsistent. However, if a subsequent will is completely inconsistent with an earlier one, that earlier will be considered completely revoked by implication.
  • The testator must demonstrate that he has the capacity to dispose of his property, and does so freely and willingly.
  • The testator must sign and date the will, usually in the presence of at least two disinterested witnesses (persons who are not beneficiaries).
  • The testator's signature must be placed at the end of the will. If this is not observed, any text following the signature will be ignored, or the entire will may be invalidated if what comes after the signature is so material that ignoring it would defeat the testator's intentions.

After the testator has died, a probate proceeding may be initiated in court to determine the validity of the will, i.e., whether it satisfied the legal requirements, and to appoint an executor. If the will is ruled invalid in probate, then inheritance will occur under the laws of intestacy as if a will were never drafted.

Although there is no legal requirement that a will be drawn up by a lawyer, there are many pitfalls into which home-made wills may fall, and it is highly desirable that any will is the subject of legal advice before drafting or execution. The person who makes a will is not available to explain him or herself, or to correct any technical deficiency or error in expression, when it comes into effect on that person's death, and so there is no room for mistake.

Some states recognize a holographic will, made out entirely in the testator's own hand. A minority of states even recognize the validity of nuncupative (oral) wills.

In community property states, a will cannot be used to disinherit a surviving spouse, who is entitled to at least a portion of the testator's estate.

It is not only a good idea, but essential that the testator give his executor the power to pay debts, taxes, and administration expenses (probate, etc.).

The law of each state regarding wills differ on the following points

Court with probate jurisdiction: Which Court.

Minimum age for disposing of property by will:

Required number of witnesses:

May witnesses be beneficiaries?: Yes or No?

Are there provisions for Self-Proving wills: Yes or No?

Are living wills recognized?: Yes or No?

How does divorce affect the will:

How does marriage affect the will?:

Who must be mentioned in the will?: Children, born or adopted; surviving spouse; etc?

Spouse's right to property regardless of will:

Laws of intestate succession (distribution if decedent leaves no will):

Community Property or Common Law state: Yes or No?

State restrictions on gifts to charities: Yes or No?

State gift, inheritance, or estate taxes:

Based on data that can be found in Prepare Your Own Will: The National Will Kit. Copyright 2000 Daniel Sitarz. All rights reserved.
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