A last will and testament or will allows a person (testator) to make a sworn statement as to who will receive real estate and personal property in their possession after their death. After signing, the will should be distributed to all the beneficiaries and to the testator's attorney.
There are no requirements for the document to be registered although it may be recorded with various county clerk's offices, probate courts, and any applicable registries.
Signing Requirements
Two (2) disinterested witnesses are required to make a will valid in every state except Colorado and Louisiana, they both require two (2) disinterested witnesses and a notary public (see table).
- Disinterested Witness – An individual that has nothing to gain if the testator dies (cannot be a beneficiary).
- Self-Proving Affidavit (optional) – Recommended being attached for the witnesses to swear under oath that they were in the presence of the testator while they signed.
By State
- Alabama
- Alaska
- Arizona
- Arkansas
- California
- Colorado
- Connecticut
- Delaware
- Florida
- Georgia
- Hawaii
- Idaho
- Illinois
- Indiana
- Iowa
- Kansas
- Kentucky
- Louisiana
- Maine
- Maryland
- Massachusetts
- Michigan
- Minnesota
- Mississippi
- Missouri
- Montana
- Nebraska
- Nevada
- New Hampshire
- New Jersey
- New Mexico
- New York
- North Carolina
- North Dakota
- Ohio
- Oklahoma
- Oregon
- Pennsylvania
- Rhode Island
- South Carolina
- South Dakota
- Tennessee
- Texas
- Utah
- Vermont
- Virginia
- Washington
- West Virginia
- Wisconsin
- Wyoming
Table of Contents |
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What Should be Included
- Beneficiaries – Names of individuals who will be eligible to receive the estate;
- Assets and property – List all valuables;
- Personal representative (executor) – Who will be responsible for distributing the estate; and
- Testator's signature – Must be signed in accordance with state law).
How to Make a Will (5 steps)
- Step 1 – Identify Your Assets
- Step 2 – Appoint a Personal Representative (Executor)
- Step 3 – Choose Your Beneficiaries
- Step 4 – Sign
- Step 5 – Store the Will
Step 1 – Identify Your Assets
Make a list of all the assets of the testator. This should also include any debts to help prepare the personal representative (executor) of the will.
Step 2. Appoint a Personal Representative (Executor)
A personal representative (or executor) is a person that will be in charge of delivering the testator's assets to the beneficiaries after death. It is recommended that a personal representative be a trusted attorney and not a beneficiary.
Step 3. Choose Your Beneficiaries
The beneficiaries are the people who will receive the property and assets of the testator. If there are any children of family members that shouldn't be included, this should be specifically mentioned in the will.
Step 4. Sign
Under most states, a will can be signed with two (2) disinterested witnesses (except Colorado and Louisiana which require a notary public). Although, it is highly recommended to have notarized as a will can be contested for any reason by disgruntled family members were left out.
Step 5 – Store Your Will
A will is meant to be kept in a safe place with original copies provided to the beneficiaries and legal counsel. At the option of the testator, they may register the will with the probate court in their county (if applicable).
Video
How to Write a Will
Download: Adobe PDF (.pdf), Microsoft Word (.docx), Open Document Text (.odt)
Step 1 – In the header area, write to whom the will is for and in the first paragraph their details shall be entered as follows:
- After "I", enter the same name as in the header
- City, County, and State
Step 2 – Fill-in who will represent as the personal representative (also known as the 'executor') of the will. This will be the individual that will oversee the probate process and ensure that the decedent's estate is provided to the rightful heirs. Their information should be entered with their full name and address along with any secondary personal representatives in the chance that the first (1st) is not able to act.
Step 3 – Enter the beneficiaries, otherwise known as the people that will receive the testator's personal and real property after their death. The document allows for the testator to state specific items to individuals or if there is to be only one (1) beneficiary the testator may enter 'All real and personal property'.
With this document, the testator may fill-in up to three people (describing them should include their full address, relation, and last four (4) digits of their social security number (SSN)) and if there are more individuals they should be attached or added to Section III.
Step 4 – Enter the State that will govern the will. In most cases, the state inscribed will be that of the testator's primary state of residence.
Step 5 – The Testator should again, enter his or her name and date the will. They should then sign and print their name below.
Step 6 – Find at least two (2) witnesses (most States require two (2) witnesses) that can attest to the will and sign. It is strongly encouraged the witnesses be disinterested from the will. For legal purposes, and so that the document is not contested by any third (3rd) party, the witnesses along with the testator should authorize the form with a notary public present.
How to Sign a Will
Every state has its own requirements for the legality of your Will. The state of your primary residence will govern your Will. Most states require that you have two witnesses attest and sign your Will. Find your state below and be certain that you know the requirements.
| State | State Laws | Execution Requirements |
| Alabama | Title 43, Chapter 8 | § 43-8-131 Two Witnesses |
| Alaska | Title 13, Chapter 12 | AS 13.12.502 Two Witnesses |
| Arizona | Title 14 | § 14-2502 Two Witnesses |
| Arkansas | Title 28 | § 28-25-102 Two Witnesses |
| California | Sections 6100 to 6139 | 6110 Two Witnesses |
| Colorado | CRS Title 15 | § 15-11-502 Two Witnesses or Notary Public |
| Connecticut | Chapter 802a | Section 45a-251 Two Witnesses |
| Delaware | Title 12 | DE Title 12, Chapter 2 § 201 & 202 Two Witnesses |
| Florida | Chapter 732 | FL Section 732.502 Two Witnesses |
| Georgia | Title 53 | GA Section 53-4-20 Two Witnesses |
| Hawaii | Chapter 560 | HI Section 560:2-502 Two Witnesses |
| Idaho | Title 15 | ID Section 15-2-502 Two Witnesses |
| Illinois | 755 ILCS 5 | Section 755 ILCS 5/4-3 Two Witnesses |
| Indiana | Title 29 | IC 29-1-5-3 Two Witnesses |
| Iowa | Chapter 633 | Section 633.279 Two Witnesses |
| Kansas | Chapter 59 | Section 59-606 Two Witnesses |
| Kentucky | Chapter 394 | Section 394.040 Two Witnesses |
| Louisiana | CC 1570 | Art. 1577 Two Witnesses and a Notary Public |
| Maine | Title 18-A, Article 2 | Section 2-502 Two Witnesses |
| Maryland | Title 4 | Section 4-102 Two Witnesses |
| Massachusetts | Chapter 190B | Section 2-502 Two Witnesses |
| Michigan | Act 386 of 1998 | Section 700-2502 Two Witnesses |
| Minnesota | Chapter 524 | Section 524.2-502 Two Witnesses |
| Mississippi | Title 91, Chapter 5 | Section 91-5-1 Two Witnesses |
| Missouri | Chapter 474 | Section 474.320 Two Witnesses |
| Montana | Title 72 | Section 72-2-522 Two Witnesses |
| Nebraska | Chapter 30 | Section 30-2327 Two Witnesses |
| Nevada | Title 12 | NRS 133.040 Two Witnesses |
| New Hampshire | Chapter 551 | Chapter 551 Two Witnesses |
| New Jersey | Title 3B | Section 3B:3-2 Two Witnesses |
| New Mexico | Chapter 45 | Section 45-2-502 Two Witnesses |
| New York | Estates, Powers, and Trusts | Section 3-1.1 Two Witnesses |
| North Carolina | Chapter 31 | G.S. 31-3.3 Two Witnesses |
| North Dakota | Chapter 30.1-08 | 30.1-08-02. (2-502) Two Witnesses |
| Ohio | Chapter 2107 | ORC 2107.03 Two Witnesses |
| Oklahoma | Title 84 | 84 OK Stat § 84-55 Two Witnesses |
| Oregon | Chapter 112 | ORS 112.235 Two Witnesses |
| Pennsylvania | Title 20 | Title 20 § 2502 Two Witnesses |
| Rhode Island | Title 33 | Section 33-5-5 Two Witnesses |
| South Carolina | Title 62 | Section 62-2-502 Two Witnesses |
| South Dakota | Chapter 29A-1 | Section 29A-2-502 Two Witnesses |
| Tennessee | Title 32 | Section 32-1-104 Two Witnesses |
| Texas | Probate Code | Sec. 251.051 Two Witnesses |
| Utah | Title 75 | 75-2-502 Two Witnesses |
| Vermont | Title 14 | 14 V.S.A. § 5 Two Witnesses |
| Virginia | Title 64.2 | § 64.2-403 Two Witnesses |
| Washington | Title 11 RCW | CW 11.12.020 Two Witnesses |
| West Virginia | Chapter 41 | Section 41-1-3 Two Witnesses |
| Wisconsin | Chapter 853 | Section 853.03 Two Witnesses |
| Wyoming | Title 2 (Wills, Decedents' Estates and Probate Code) | Section 2-6-112 Two Witnesses |
How to Amend a Will
Use the Codicil to a Will (or simply a "codicil") if the testator has decided to amend their Will. This can be for any reason such as changing the executor, personal representative, beneficiary(ies), or any other facet in the transfer of the estate. The Codicil is required to be attached to the Will and signed in accordance with State law.
Self-Proving Affidavit – It's recommended that when any Will amendment occurs through a Codicil that the two (2) witnesses authorize to swear, under oath, that they watched the signature of the testator.
Will vs Living Trust
Both a Living Trust and a Will accomplish similar goals that deliver of ownership of person's assets to their beneficiaries upon death. Although, there are differences depending on the circumstances of the individual.
Last Will and Testament
- Probate court oversees your Last Will after your death.
- Allows you to appoint a guardian for a minor.
- Public knowledge after it is recorded.
- Does Not avoid conservatorship, which is when a court appoints a representative to handle your finances. However, a conservatorship can be avoided with a Durable Power of Attorney, which will allow you to appoint a person of preference to handle your finances in the event you become incapacitated.
Living Trust
- Probate court does not oversee a Living Trust. No jurisdiction.
- Does Not allow you to appoint a guardian for a minor.
- Private and therefore does not become public knowledge.
- Avoids conservatorship. The successor trustee that you appoint will be responsible for transferring your property.
Will vs Living Will
A Living Will is directed towards your health care preferences if and when you become mentally incapacitated. It allows you to appoint a Health Care Proxy who will then carry out your health care preferences. A Last Will and Testament is legally enforced after your death which deals with the transfer of your assets and personal property.
FAQ (Frequently Asked Questions)
Is it necessary to have a Will?
If you care about your family and for those that love you, you will not go another day without a Last Will and Testament. It's very important, especially if you are in the later stages of your life with a spouse and/or children. When a person dies without a Will, they leave their assets in the hands of the court system. Because of this, disputes and confusion can easily arise between family members. No matter your age, if you have valuable assets and loved ones, make sure you have a Will set in place.
Which State governs my Will?
Whichever state the testator resides is the state that governs the Will. If your primary residential address is in the State of Florida, normally your Will would be governed accordingly. (Typically the state you pay personal income tax is the state that will govern your will.)
Which types of personal property can I include?
Personal property is any type of item in your possession that has value (Important: does not include cash). Personal property includes vehicles, jewelry, collectibles, furniture etc. You may choose to give all your personal property to one person or you can proportionately allocate your personal property to multiple beneficiaries.
What happens if a Beneficiary dies?
If your primary beneficiary dies before you do, you can alter and remove that deceased person from your Will, otherwise, if you have a 2nd choice recipient/beneficiary, your property will go to that person. In some states that use the Uniform Probate Code, a beneficiary must survive for at least 5 days following your death in order to inherit your property. If there is no alternate beneficiary to inherit your estate upon your death, your Will would then be subject to your state's "Anti-Lapse" Laws.
Can I appoint someone to take care of my pets?
Yes, in your Will, you can select a person to be the caretaker of your pets upon your passing.
No Will After Death (Die Intestate)
If there is no will that was recorded by the individual that has died (known as 'intestacy'), and the estate is under the State threshold for probate proceedings, the property may be distributed through a Small Estate Affidavit.
Estate Planning Checklist
- Estate Planning Checklist
Use as a guide to ensure an individual's estate is complete to the fullest extent by law as well as incorporate other end-of-life decisions. Power of attorney forms, for example, allow someone to choose someone else to make financial and medical decisions on their behalf if they aren't able to do it themselves. In addition, a living will allows a person to make medical treatment requests if they should be incapacitated or decide if they would like their organs to be donated after their death.
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Source: https://eforms.com/wills/
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