Requirements for a Valid Will

A will is a communication, either oral or written, that describes how a person's property is to be legally distributed upon their death.

If a person dies with a valid will, then they are said to die "testate". If a person does not have a will, then the person is said to have died "intestate". In the case of intestacy, the property of the deceased is distributed according to the intestacy laws of the state where the property is located at.

Leaving the distribution of property up to state laws might not be favorable for the estate of the deceased. Thus, it is in everyone's interests to prepare a valid will before they die so that they can control who receives their property. A person who creates a will is called a "testator".

The Different Types of Wills

Depending on the way they were created, there are many different types of wills. Some of these are:

"Self-proving" wills- This is a will that has been signed and witnessed according to all the formal requirements of state law. It is the most common type of will and is usually recognized by most courts
"Oral" wills- This is a will that has been communicated orally from person to person. These are recognized in only a few of the states. They usually are formed under urgent circumstances, such as an impending death in an emergency
"Holographic" wills- A type of will that is handwritten and made without witnesses. Also only recognized by a few states under very restrictive circumstances

Again, as you can see from this list, it is in the person's best interests to create a valid will well before they pass away, so that it will be recognized by the state they live in. The most recognized type of will is the self-proving will, because it is validated by witnesses and satisfies state requirements.

Requirements for a Will to be considered Valid

Each state has different will requirements. The more important will requirements have to do with whether the document is in fact a will, and what the deceased person intended in their will. Most states require the following in order for a will to be considered as valid:

Capacity to create a will-

The testator must usually satisfy an age requirement of at least 18 years old
The person must be of "sound mind", meaning that they understand what a will is and that they are creating a will
The testator should understand their relationship to the various beneficiaries who are named in the will

The will must be dated and signed by the testator
Witnessed- the will needs to be signed by at least two or three witnesses (depending on state law). The witnesses should be disinterested parties, preferably unrelated. Having witnesses is also known as "attesting" the will, or "attestation"
Clearly state that the document is in fact the testators will. That is, the court should be able to identify from its face that it is a will. Can include a phrase such as "this is my last will and testament", etc.
Executor- the will should identify who will be in charge of distributing the various properties and paying any outstanding debts
Other provisions- the will should also provide for:

Guardianship of minors
A list of specific items and how they are to be distributed
How any property not mentioned specifically in the will is to be distributed

Updating and Revising a Will

After creation, a valid will may be updated or revised by the same testator.

A will should be updated when:

The testator gets married or becomes divorced
The testator gives birth to a child or adopts a child
A family member or a named beneficiary of the testator dies
Any other major changes to the testator's estate or social network

A will can be changed in the following ways:

By codicil- this is a formal amendment to a will that is executed under the same formal will requirements mentioned above. Some courts hold that the will is re-executed according to the date of the codicil. This is called "republishing by codicil"
Revoking the will and creating a new one- some courts also allow a testator to publish a new will. The new will may or may not cancel the old will, depending on the testator's intent, as well as state laws

Recap

It is in a persons' best advantage to have a valid will prior to death. If a person does not have a will, then the property will be distributed according to state law, which might not be in line with the person's desires.

Also, if the will is not specific enough, courts might be forced to try and gather what the persons' intent was from the will. Thus, the will should be as specific and detailed as possible. Here are some points to consider in formulating a will:

Make sure all of the requirements for a valid will are satisfied according to state law
Be as specific as possible, especially with regards to specific gifts made to specific persons
Most will disputes occur due to changes or cancellations made in a will. If you will be amending or canceling a will, be specific as to what your intentions are in the changes
A codicil is a good way to make changes to a will, since it satisfies all the formal requirements
A lawyer is not required by law in order to draft a will; however, you may want to hire a lawyer who can help prepare the necessary documents with you