Drafting a legally valid will is an important part of estate planning. The wording used in a will must adhere to your state’s probate laws and clearly reflect your wishes for distributing your assets after death. While there are certain requirements and formalities involved in preparing a will, having the proper wording helps ensure your will accomplishes what you intend.
What is a Will?
A will is a legal document that explains how you want your assets to be distributed after you pass away. It allows you to decide who will inherit your property, who will be the executor of your estate, and who will be the guardian of any minor children you have.
Some key things to know about wills:
- A will only takes effect upon your death. It does not impact your assets while you are still alive.
- You must be of legal age (18 in most states) and sound mind to make a will.
- A will should name an executor, the person who will carry out your wishes as specified in the will.
- A will should be updated any time there is a major life change such as a marriage, divorce, birth of a child, etc.
- Dying without a will means your estate will go through probate and be distributed according to state intestacy laws, which may not match your wishes.
Having a properly drafted will helps avoid disputes and confusion about distributing your property when you’re gone.
Requirements for a Valid Will
For a will to be legally valid, there are certain requirements that must be met in most states:
- You must be of legal age (18 in most states) and sound mind.
- The will must be in writing – oral or video wills are usually not accepted.
- The will must clearly state that it is your last will and testament.
- The will must be signed by you in the presence of two adult witnesses, who also sign the will.
- The will should name an executor to carry out the terms of the will.
- You should not be under any undue influence or duress when making the will.
Meeting these requirements helps demonstrate that you willingly made the will and were of sound mind when doing so. This can help avoid disputes from others trying to claim the will is invalid.
Key Elements to Include in a Will
Here are some of the most important things that should be included in your will:
1. Declaration
The will should start with a declaration stating it is your last will and testament and revokes any prior wills or codicils. For example:
“I, [your full name], a resident of [city, state], declare that this is my last will and testament. I hereby revoke any prior wills or codicils.”
2. Executor
Name a trusted person as the executor of your estate. This person will carry out your wishes as specified in the will. For example:
“I nominate [full name of executor] as the executor of my will.”
3. Beneficiaries
Clearly state who will inherit your property. Specify whether they will inherit outright or in trust. Use full legal names. For example:
“I leave my entire estate to my spouse, [full name]. If my spouse does not survive me, I leave my entire estate to my children [full names] in equal shares.”
4. Alternate Beneficiaries
Name alternative beneficiaries in case your primary beneficiaries pass before you. This is called a contingency provision. For example:
“If my spouse does not survive me, I leave my entire estate to my children [full names] in equal shares. If any child does not survive me, their share is to go to their descendants by right of representation.”
5. Guardian for Minor Children
If you have minor children, name a guardian to care for them in the event your spouse is unable or unwilling to do so. For example:
“If my spouse does not survive me, I nominate [full name of guardian] as guardian of any minor children of mine.”
6. Gifts of Specific Property
You can leave certain personal property or real estate to specific beneficiaries rather than just dividing your entire estate. For example:
“I leave my [automobile/jewelry/cottage] located at [description of property] to [name of beneficiary].”
7. Residual Clause
Indicates who gets assets that are not specifically gifted elsewhere in the will. For example:
“I leave the residuary of my estate to my spouse [full name]. If my spouse does not survive me, the residuary passes to my children [full names] in equal shares.”
8. Execution
You must sign the will in front of two adult witnesses, who also sign to show they witnessed you signing it. Common wording includes:
“In witness whereof, I sign my name to this last will and testament on [date] at [city, state].”
[Signature of person making the will]“On [date], [name of testator] signed this last will and testament in our presence, declaring it to be their last will and testament, and we now sign it as witnesses at their request.”
[Signature of witness 1] [Signature of witness 2]Other Clauses to Consider
Depending on your specific situation, other clauses you may want to include in your will include:
- No contest clause – States that anyone who contests the will gets nothing. This helps deter challenges.
- Debts/taxes – Specifies if certain beneficiaries are responsible for estate debts and taxes on gifts received.
- Funeral wishes – States your wishes about burial, cremation, funeral expenses, etc.
- Charitable gifts – Leaves specific money or property to charity.
- Separate writing – Incorporates list of personal property distribution kept in a separate document.
- Trusts – Leave property to beneficiaries in trust rather than outright.
Common Will Terminology
Here are some key terms used in wills and their definitions:
- Testator/Testatrix – The person making the will.
- Executor/Executrix – The person carrying out the terms of the will.
- Decedent – The person who passed away.
- Beneficiary – Anyone inheriting under the will.
- Bequest – Gift of personal property made through the will.
- Devise – Gift of real property made through the will.
- Per stirpes – Leaving property to descendants of a beneficiary who predeceases the testator.
- Intestate – Dying without a will.
- Issue – Descendants of a person.
- Right of representation – Method of distributing property to descendants of a beneficiary who died before the testator.
- Residuary estate – Any assets left in the estate after debts/expenses/taxes are paid and specific bequests are made.
Sample Language for Common Will Provisions
Here are some examples of proper wording for common provisions in a last will and testament:
Appointing an Executor
“I nominate my spouse, Jane Doe, to serve as the executor of my will. If my spouse is unable or unwilling to serve, I nominate my friend John Smith as alternate executor.”
Disinheriting a Family Member
“I intentionally make no provision in this will for my son, Dave Smith, or his descendants.”
Leaving a Gift to Charity
“I give, devise, and bequeath the sum of $50,000 to the American Cancer Society, a nonprofit corporation located at 250 Williams Street, NW, Atlanta, GA 30303.”
Creating a Trust
“I give my residuary estate to my trustee, Jack Johnson, to be held in trust and managed for the benefit of my minor children, Alex and Zoe Roberts, until the youngest reaches the age of 25.”
Cancelling Debts Owed by Beneficiaries
“Any debts owed to me by my beneficiaries at the time of my death shall be cancelled and forgiven by my executor.”
Requesting Burial Wishes
“It is my wish to be cremated and have my ashes spread at my favorite hiking trail in the mountains.”
Mistakes to Avoid When Writing a Will
Here are some common mistakes that can void a will or cause unintended consequences:
- Not having the will properly witnessed – A major source of disputes is lack of witness signatures.
- Appointing an executor who has passed away or may not outlive you.
- Forgetting to update your will after major life events – marriage, divorce, births, sale of property, etc.
- Unclear language that causes confusion about your intent.
- Contradictory provisions that conflict with each other.
- Not coordinating beneficiary designations on financial accounts with the will.
- Not planning for what happens if all beneficiaries predecease you.
- Thinking verbal comments to friends or family constitute a legal will.
Consult an estate planning attorney and avoid handwritten or self-prepared wills to reduce the chance of errors. Your attorney can help craft language and provisions tailored for your unique situation.
Updating Your Will
You should update your will any time there are significant changes that affect your intent. Major life events that may necessitate updating your will include:
- Marriage or divorce
- Birth or adoption of children
- Death of beneficiaries or executor
- Change in estate value
- Sale of property specifically mentioned
- Change in tax laws
- Relocation to another state
- Change in guardians for minor children
- Disability requiring special needs trust
Updating helps ensure your will remains legally valid and your wishes can be carried out properly at the time of your passing.
You can update your will by drafting a new will entirely or by executing a codicil, which is an amendment modifying only certain provisions. Minor changes are usually best done by codicil, while substantial changes call for redoing the entire will.
Will Contests and Disputes
Unfortunately, it’s not uncommon for unhappy beneficiaries to contest a will after a person dies. Some reasons wills get challenged include:
- Claim the testator lacked mental capacity when making the will.
- Allege the testator was under undue influence from others.
- Assert the will was improperly executed and witnessed.
- Claim a newer will exists that revokes the previous will.
- Sue for tortious interference because someone prevented an inheritance.
To help avoid potential contests, be very clear in your will about intent, make sure its properly witnessed and executed, don’t discuss your will openly, and draft a no contest clause.
Probating a Will
Probate is the court-supervised process of administering and proving a will after someone dies. Steps typically include:
- The executor files the will and death certificate in probate court.
- The court reviews the will and notifies beneficiaries.
- Executors inventory assets, pay debts, file final tax returns.
- Remaining assets are distributed as specified in the will.
- The executor obtains court approval of the asset distributions.
- Estate is closed after assets are distributed.
The process can take from 9 months to 2 years depending on estate complexity. Probate ensures debts/taxes are paid before distribution to heirs.
Alternatives to Probate
Certain estate planning strategies allow you to avoid the time-consuming probate process. These include:
- Joint tenancy assets – Property held jointly automatically passes to the surviving owner.
- Payable-on-death financial accounts – Assets go directly to the named beneficiary.
- Living trusts – Assets titled in trust avoid probate.
- Gifts during life – Giving away assets during your lifetime avoids probate.
- Life insurance – Proceeds pass directly to the named beneficiaries.
Consult an estate planning attorney about strategies to avoid probate and minimize estate taxes. This can help streamline the transfer of assets to your heirs.
Intestacy Laws
If you die without a will, you are said to die “intestate” and your estate will be distributed according to intestacy succession laws in your state. Typically assets go to your closest blood relatives starting with any surviving spouse and children. For example, a typical distribution would be:
1. Surviving spouse inherits 100% if no descendants.
2. Spouse inherits first $50,000 plus 50% of remainder.
3. Remaining 50% divided equally among children.
The court will appoint an administrator to handle an intestate estate. The administrator has authority similar to an executor and must still go through probate court to administer the estate.
Dying intestate means you lose control over who inherits your property. Having a will avoids intestacy and ensures your assets go to your chosen beneficiaries.
| Law | Explanation |
|---|---|
| Community Property Law | In community property states, most property acquired during marriage is considered jointly owned 50/50 by each spouse. |
| Elective Share | Allows a surviving spouse to take a statutorily set minimum portion of the deceased spouse’s estate, preventing total disinheritance. |
| Pretermitted Heir | Protects children born or adopted after execution of the will, allowing them to receive a share of estate. |
| Slayer Statute | Prohibits inheritance by a beneficiary who intentionally kills the testator. |
Using an Attorney
While not legally required, it is highly advisable to use an experienced probate and estate planning attorney when creating your will. An attorney can:
- Ensure your will is properly drafted and executed under your state laws.
- Help you phrase your wishes clearly to avoid confusion or disputes.
- Explain options like trusts if appropriate for your situation.
- Update your will whenever major life events occur.
- Reduce the chances of successful contests to your will.
For most people, the cost of an attorney is well worth the peace of mind knowing your estate will be handled according to your intentions if something unexpected happens to you.
Key Takeaways
Drafting a proper will is an important piece of your estate planning. Here are some key tips regarding creating a legally valid will:
- Consult an experienced estate planning attorney to ensure your will adheres to all state laws.
- Your will should clearly state how you want your assets distributed after death.
- Name primary and alternate executors and beneficiaries.
- Use clear, unambiguous language to reduce potential for confusion.
- Have the will properly executed and witnessed under your state laws.
- Store the original will in a safe location known to your executor.
- Review and update your will after any major life event or move to a new state.
Following these tips can help ensure you pass on your legacy according to your wishes and that your loved ones are provided for after you’re gone.