For centuries, the legal will has been the most common method for people to spell out what should happen to their estate upon their death. Wills come in many shapes and sizes, and if done correctly, may accomplish a wide variety of objectives.  A will may be used to distribute personal property, pay debts, establish trusts, or express wishes about how employees or dependents should be cared for in the future. Often times, the terms of a will are used to express the deeply personal opinions of the deceased, and as such it is important that they are drafted carefully so that those wishes are carried out to the maximum extent possible. 

 

In one sense, a will is a legal contract like any other, which means that there are rules about how they can be formed, altered, or terminated. Although all states have different formal requirements for the creation of a valid will, there are several rules that apply broadly. Generally, a person must be at least 18 years old and have the mental capacity to understand all of the terms of the will at the time it is executed. The moment of creation is the essential time in questions of capacity, and the fact that a person might fade in and out of lucidity is not necessarily relevant. As long as the person was of sound mind at the time of execution, the will is valid.

 

In most states, a will must be in writing and signed by the subject, referred to as the testator. In some jurisdictions it is still possible to have a valid oral will, but they are disfavored by the courts and are scrutinized heavily. Typically, statutes regulating oral wills state require that the testator be on his death bed at the time of creation, and even then only personal property can be disposed of, and only non-witnesses can receive property.

 

For written wills, the signing must typically be witnessed by at least two people who are not beneficiaries. A beneficiary is any person who is chosen to receive property or rights under the terms of the will. It is not necessary that the witnesses read the will first, but they must be advised of the purpose of the ceremony and must sign the will in front of the testator. Hiring an attorney is not required to create a will, but it is recommended for more complicated wills involving large estates, closely held corporations or trust arrangements.

A will remains valid until it is expressly revoked by the testator, or superseded by a new will. A testator can change certain parts of a will without invalidating the remainder by adding an amendment, referred to as a “codicil”. A second option is to simply create a new will, which should contain express language that clearly shows the testator’s intent to revoke the previous will. It is also common for a testator to name a representative to be responsible for carrying out their wishes upon their death. This person is referred to as an executor, and has the responsibility of collecting the testators assets and other property, paying off any remaining debts, tax liabilities or final expenses, filing necessary paperwork to finalize the estate, and distributing property per the terms of the will.