Drafting a Will

A will is a legal communication that provides instructions on how a person's property should be distributed upon death. It is always a good idea to have a will prepared, because if a person dies without a will ("intestate"), their property will be distributed according to state laws, which often do not address unique individual concerns.

Common types of wills

There are three basic types of wills that are commonly used. Oral wills are created through oral communications without witnesses or a written document. They are rarely recognized by state laws. Holographic wills are handwritten notes made without the presence of witnesses. These are also rarely allowed in states. Self-proving wills are properly signed and witnessed in satisfaction of all the will requirements. These are the most common type and are nearly always recognized in courts.

Will Requirements

In order to be valid, most states require the following when making a will:

  • Legal age: The testator or the one creating the will must be at least 18 years old
  • Capacity: The testator must be of sound mind and mentally competent such that they understand that they are creating a will
  • Attestation: The will must be attested, or affirmed by at least two witnesses who will sign the document in each other's presence. The will must also clearly state that the document is in fact the testator's will

In addition, the will should include provisions which specifically state the items to be distributed. It should also name the persons who will be receiving property, as well as the executor, or the person who will be overseeing the distributions. Guardianship of minors should be provided for in the will. A well-drafted will may also include instructions regarding the distribution of properties not specifically listed in the will.

Updates and Revisions to the Will

Formally attested wills may be updated in the future through a device called a codicil. A codicil is basically amendment to a will and should be executed with the same formalities as a will. The will may also be changed by canceling the old will and creating a new one.

The will should be updated after major events in one's life, such as a marriage or divorce, the birth of children, or upon acquiring a significant amount of money.

Issues with the Will

If the will is vague or unclear, courts will do their best to try and discern what the testator's intent was based on existing will documents. For this reason, it is important to work with a lawyer so that your written will clearly reflects your desires and wishes.

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