Creating a valid will is 3 step process:
- Confirm that the person making the will has capacity to make a will.
- Ensure that you follow the proper state requirements for drafting the will
- Make your will official by signing it in the presence of two witnesses and/or a notary public.
#1 Confirm that the person making the will has capacity
State law requires that a person making a will must have “capacity.” A person has capacity if they are of “sound mind”, which generally means that person meets the essential requirements for physical health, safety, and self-care – even if such requirements are met only with the help of technological assistance.
Most states qualify what it means to have “capacity” through the negative of identifying persons who do not have capacity. The California Probate Code, for instance, states that an individual does not have capacity to make a will if, at the time of making the will, either of the following 1 or 2 is true (Cal. Prob. Code Sect. 6100.5):
- The individual does not have sufficient mental capacity to do any of the following:
- understand the nature of completing the will;
- understand and remember the nature and situation of the individual’s property; or
- understand and remember the individual’s relations to living descendants and other people affected by the will
- The individual suffers from a mental health disorder with symptoms including delusions or hallucinations that result in giving property in such a way that they would not have done without the delusions or hallucinations
Because having capacity is fundamental to making a valid will, elderly individuals and individuals who experience periodic memory or thinking challenges should consider drafting their will with the help of an attorney, who can draft a memorandum at the time of making the will that serves as an official written record to ensure that testamentary capacity requirements were met at the time of drafting the will. Other options might include making the will self-proved by execution of a self-proving affidavit.
#2 Ensure you follow the proper state requirements for drafting the will
Generally, wills should be typewritten. Although some states also allow handwritten wills (also known as holographic wills) and/or oral wills (called nuncupatative wills) under certain situations, having a typewritten will makes updating the will for changes in your life easier, faster, and more economical.
Since state laws and the needs of different individuals vary greatly, there is no one size fits all approach to drafting a valid will. Some people may find that using an off-the-shelf form like the California statutory will or copying a basic will template may be enough to satisfy their needs and the requirements of their state.
A competent estate planning attorney licensed to practice in your state should be able to help you create a will that meets your needs and your state requirements. He or she can also walk you through certain ‘default’ gifts and allowances that your heirs may be entitled to receive independent of the wishes that you express in your will, such as the elective share of a surviving spouse, children omitted from the will, and certain Homestead and exempt property rights.
If you plan to use an online will drafting solution, make sure that solution, like Just In Case Estates, offers state-specific wills and customer support to guide and answer questions that you may have throughout the process.
If you plan to independently create your own will, find and read the relevant sections of your state’s legal statutes to ensure that you are meeting your state’s requirements. Simple google searches for “[Your State] Probate Code” or [Your State] Will Execution Requirements” are generally a good start to finding where these provisions exist.
Make Your Will Official by Collecting the Proper Signatures
Your state will detail exact guidelines required for signature. Together with the capacity requirement, the signing ceremony is arguably the most important requirement. If you don't execute the will properly, the entirety of the will may be ruled invalid.
While some states allow for a will to be upheld despite a “harmless error” in its execution, such a "harmless error" ruling may still come at a delay and increased cost of your probate court proceeding, or one or more of your beneficiaries forfeiting some or all of their share under the will. You are better off planning ahead and picking good witnesses.
You’ve Finished Your Will. What’s Next?
After you've drafted and executed your perfect will, find a safe place to store it and leave it unaltered unless you intend to change it. While it may sound silly, even something as seemingly innocuous as removing the staples on an executed will can be grounds for objection to probate. New York state actually has a specific legal form called an “Affidavit of Staples” that the person who removed the staples needs to sign in order to admit the will to probate.
If you do want to change any portion of your will, best practice is to make a brand new will that revokes the old will. If you've typed your will or created it with the help of drafting software like the kind available through Just In Case Estates, making a quick change and creating a fresh will is fast and easy.