Last Will and Testament

Requirements of a will

A will is a legal document that tells a court or administrator how you want your property distributed after your death. These instructions are usually binding on the administrator. However, a will can be overridden if a law supersedes it, if you were coerced or mentally incompetent when you signed it, or if a court rules against it after someone challenges it.

In most cases, you should consult a lawyer to prepare your will. After you die, no one can ask you to clarify unclear language. If you try to give away property you don't own, or make requests that violate the law, it could invalidate much or all of the will. A lawyer can help you avoid these pitfalls, even for a simple will.

If you can't afford a lawyer, have few assets, or can't access legal help, it's worth understanding what makes a valid will.

Don't make assumptions

Many people assume their family and friends will handle the estate fairly after they're gone. Don't count on it. More importantly, don't create temptation by leaving things vague.

Even if everyone intends to be fair, they often disagree on what fair means. Sibling relationships have been permanently damaged over how to distribute a parent's estate.

Be specific in your will. If you've told people they'll receive your antique clock, they may remember it differently—or not at all.

Courts honor your wishes as written in your will. A will doesn't need fancy language or formal structure. Wills have been written in crayon on napkins or paper bags, sometimes just a few sentences.

But the less specific a will is, the more broadly a court will interpret it. You can't expect a judge to read your mind. Be as specific as possible so your wishes are clear.

Keep your will with someone you trust. Even if your will is perfect, it's useless if no one knows where it is or it gets destroyed.

This is another reason to have a lawyer prepare your will. Your lawyer can keep a copy and witness your signature. If someone later claims you were pressured or mentally incompetent, the lawyer can testify that you seemed clear-minded when you signed. Other options include storing it with a trusted person or in a safe deposit box.

This guide assumes you are creating your will without a lawyer.

Signature

A will must be clearly signed by you. Don't just type your name at the bottom. A typed name alone is not enough, because anyone could have typed it and claimed it was yours.

In most cases, sign the bottom of the will and the bottom of every page. This matters if someone else typed or wrote it, because your signature shows you've read and agreed with each page.

Handwritten wills

Handwritten wills are legal and often withstand challenges. Some have been upheld even without a signature, as long as the handwriting clearly belongs to the person making the will.

If you write your will by hand, a fully handwritten will is more persuasive to a court than a typed one you've simply signed. A signature is easy to forge, but handwriting throughout is much harder to fake.

Verbal wills

Verbal wills are more common than many realize, but they carry the least legal weight because they rely on memory and are easily misremembered or distorted by people's interests.

A verbal will is a spoken statement, often made by someone who is dying. But a verbal will that was never written down—even if the person had chances to write it down later—is usually ignored, especially if a written will says something different.

Most states require verbal wills to be heard by more than one witness, and at least one witness should have no stake in the outcome. Verbal wills are risky and should be avoided.

Date your will

Most people update their wills over time. Date your will so it's clear which version is the most recent. A court will almost always follow the instructions in the newer will unless someone challenges its validity.

If a will isn't dated and you leave behind more than one, it's hard to know which is the latest. A court might try to figure it out from clues in the document or from witnesses, but this process is complicated and unreliable.

Witnesses

Have someone witness your signature on the will to confirm you signed it willingly. While not required in all states, a witness can help defend the will if someone challenges it.

To strengthen the will further, have a notary public sign and seal it. A notary verifies your identity and witnesses your signature, which adds legal weight.