The Seven Essentials of a Valid 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 usually must be present.

1. Legal age. You must be of legal age to make a will. This is 18 in most states, but may be several years older or younger in some places.

2. Sound mind. You must be of sound mind, which means that you should know you’re executing a will, know the general nature and extent of your property, and know the objects of your bounty, i.e. your spouse, descendants and other relatives who would ordinarily be expected to share in your estate. The law presumes that a will maker was of sound mind, and the standard for proving otherwise is very high--much more than mere absent-mindedness or forgetfulness.

Because disgruntled relatives who want to challenge a will occasionally use this sound-mind requirement to attack the will maker’s mental capacity, in special cases the execution of a 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 of testamentary capacity. (Of course, if the willmaker is in the last stages of a debilitating disease, a videotape might appear to show a lack of capacity.)

3. Intended to transfer property. 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--that is, that you really intended it to be a will.

4. Written. Although oral wills, if witnessed, are permitted in limited circumstances in some states (see next section), wills must usually be written and witnessed. Nevada recently authorized electronic wills, but it is still unclear how this will work and whether other states will follow suit.

5. Properly signed. The will must be voluntarily signed by the will maker, unless illness or accident or illiteracy prevents it, in which case you can direct that your lawyer or one of the witnesses sign for you. This requires a lawyer’s guidance, or at least knowledge of your state’s law, since an invalid signature could void a will.

6. Properly witnessed. In almost all states, the signing of a formal will must be witnessed by at least two 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 your will). If they aren’t, you run the risk of voiding certain provisions in the will, opening it to challenge, or invalidating the entire will.

7. Properly executed. 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--and watched each other signing it. Most states allow so-called self-proving affidavits, which eliminate the necessity of having the witnesses go to court to testify that they witnessed the signing; the affidavit is proof enough. In other states, if the witnesses are dead or unavailable, the court may have to get someone else to verify the legitimacy of their signatures.

If your will doesn’t meet these conditions, it might be disallowed by a court, and your estate would then be distributed according to a previous will or under your state’s intestacy laws.