What Is a Will, Anyway?

A will is a legal document. As such, it must comply with specific legal requirements established by state statutory and case law. Anything less can result in a portion of the will or even the entire will to be invalidated when it gets to probate court.

Although wills may vary from state to state, they all have the following basic legal requirements in common:

• A will should generally be typewritten or printed using a computer printer (see box below for more information).
• The testator (the person making the will) must be clearly identified in the will.
• The will should clearly state that this is your will and revoke all previously made wills.
• The testator must be at least 18 years old and of sound mind and body at the time the will is made.
• The testator must sign and date the will.
• The testator's signature must generally be witnessed by at least two qualified individuals. Your state may require three witness signatures and it is a good practice to have at least that many in case some of them become unavailable.

Tip Your will should be typewritten or printed using a computer printer. Using any other format is asking for trouble. About one-half of the states will accept a handwritten (also referred to as a holographic) will. Such a will must be entirely written in the testator's handwriting. Most states that accept holographic wills do not require that the will be witnessed to be valid. However, holographic wills are highly prone to forgery, fraud, undue influence, and other improprieties that lead to a will contest. Probate judges dislike them because of the troubles they cause, so they are very strict when interpreting the provisions of these wills. Many states do require witnesses to prove that it was the decedent's handwriting. A few states also accept oral or nuncupative wills. This type of will is even more suspect than a holographic will. Where it is accepted, an oral will is usually limited to a situation where the will maker is facing imminent death. Many states also require that the statements be made in the presence of two or three witnesses, and some requirement that the statements be reduced to writing within a short period of time after they are made. At the bottom of the heap are video-taped "wills." At present, these are not accepted as wills in any state and any video declaration made must be backed up by a valid written will. Video-taping your will was highly chic at one time and is still used today (e.g., to establish the soundness of the testator's mind and body or the absence of undue influence). It can also be used to explain why you distributed your assets the way that you did, for example, providing more to one child than another. Keep in mind that, even in probate court, anything you say as the video-taped testator can and will be used against you.

The following are some basic misconceptions about the formal requirements for making a will:

• A will does not have to be printed on special paper using fancy character fonts. Although a will looks more impressive when it is printed on crinkled parchment with medieval looking letters, such cosmetic tricks are not legally necessary. They are used primarily to provide some psychological comfort to those paying a lot of money for a will so they can feel that they got their money's worth.
• A will does not have to be notarized—but it must always be properly witnessed under the laws of your state.
• A will does not have to be recorded or otherwise filed with the government (until you die, when it must be filed for probate). It should, however, be placed in a safe place that is accessible to those you leave behind after your death.

Although a will is more than the sum of its parts, keep in mind that each technical requirement and provision of a will plays a very important role. To understand this, take a look at the following sections:

• Legal Requirements of a Will: You didn't think we'd leave you with just a basic overview of the legal requirements for a will, did you? Find out more about these requirements and why it is so important to follow them to the letter of the law.
• Common Will Provisions: Learn about the most common provisions that may be contained in a will.