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FAQ: Questions About Wills

What are the requirements for a will to be valid?

The requirements for a valid will vary somewhat by state, but the general requirements include:

  • Legal age. In most states, you must be at least 18 years old to make a binding will. In some states, the age limit is as low as 14 or 16 with exceptions for emancipated minors or when a minor has received a large inheritance.
  • Testamentary intent. This means you must be clear in expressing your intention for the document to function as a will.
  • Testamentary capacity. This means you must be of sound mind and are aware of your actions and the implications when the will is created. It’s a common misconception that someone with dementia can’t create a legally binding will, but they can if they are lucid when the will is made. In these cases, though, a letter from a doctor that confirms mental competence is a wise decision.
  • Signed. The will must be signed free of fraud, duress, or coercion. A representative can sign on your behalf if you are physically unable to sign the will.
  • Witnesses. In the vast majority of states, two adult witnesses must also sign the will. In some states, the witnesses must be disinterested which means they will not benefit from the will in any way.

After a will is created, can it be changed?

It’s important to keep a will up-to-date. If you wish to make changes to your will, you can create a new will or use a codicil to add changes to your existing will.

Either a codicil or a new will require a signature and the signatures of two (or more) witnesses to be legally binding.

A codicil is a good option if you want to make small changes. Creating a new will can clear up confusion and it’s more appropriate for larger changes like changing your beneficiaries.

Should a will have a separate list that inventories and bequeaths specific assets?

In general, it’s a good idea to create a list of specific items that will be bequeathed and to whom unless you want to leave all of your property to one person — or there are only a few items you wish to bequeath separately.

When making gifts of specific items, it’s important to describe them as clearly as possible. The more detail, the easier it will be for the executor to identify and locate the property. By listing specific assets and personal property in your will, you can be sure property is passed on as you like. This can also help avoid disagreements among heirs and beneficiaries.

When should I make a will?

There is no specific age at which you should make a will. In fact, adults of any age can benefit from a will, even without significant assets. However, there are many circumstances in which you should start thinking about creating a will. If any of the following apply to you, a will is important:

  • You are married.
  • You have children, especially if you are married with children from a previous marriage you want to receive assets.
  • You have savings, investments, real estate, or a positive net worth.

What happens if a person dies without a will?

When someone dies without a will, they have died “intestate.” This means the probate court will appoint a personal representative or administrator to identify estate assets, receive claims, pay creditors and taxes, and distribute property according to the state’s laws of intestate succession.

What happens if a will cannot be found?

What happens next depends on the state and circumstances. If a will is missing because it was revoked by the decedent, an earlier will may be used or the state’s intestate succession laws may be used to determine how assets in the estate are distributed. In some cases, a photocopy of a will and evidence that the decedent signed the original may be accepted with proof that the original will was destroyed.

If a will can’t be found and no one is sure there even was a will, the state’s intestate succession laws are used by default.

Who can or should draft my will?

A will can be drafted with the help of an attorney, using will-maker software or blank will forms, or on your own. It isn’t necessary to use a lawyer to draft a will, but it is a good idea if you have more complicated circumstances and want to make sure the will is valid according to state law.

Is an out-of-state will valid?

As a general rule, a will should remain valid even after moving to a new state. However, states have their own laws on what makes a will valid and legally binding. These specific legal provisions can make an out-of-state will invalid, depending on the laws in each state. Even if the will is valid in the new state, certain parts of the will may become void or need to be changed.

For example, Florida requires that the personal representative be related by blood or a degree of marriage or, failing this, be a Florida resident. Florida doesn’t recognize holographic (handwritten) or nuncupative (oral) wills but most states do.

Must a will be read aloud to the family by an attorney or personal representative?

The “reading of the will” depicted in so many movies and television shows is mostly fictional and never happens in modern times. This practice was only common in the past when many people were not literate. No state requires that the will be read aloud to anyone. Once the will is filed with the probate court, it becomes public record and anyone, including the general public, can read it.

IMPORTANT NOTE: Please be aware that the information on this page is delivered without warranty or guarantee of accuracy. It’s provided to help you learn more and formulate specific questions to discuss with your attorney and/or your Real Estate Professional and/or to help a personal representative, executor or executrix when executing their challenging responsibilities. By accessing this page, you acknowledge that it has been provided for information only and that you are hereby advised that any decisions regarding probate issues should be discussed with an attorney and/or a Real Estate Professional.