A will or testament is a legal declaration by which a person, the testator, names one or more persons to manage his or her estate and provides for the transfer of his or her property at death. For the devolution of property not disposed of by will, see inheritance and intestacy. In the strictest sense, a “will” has historically been limited to real property, while “testament” applies only to dispositions of personal property, though this distinction is seldom observed today. A will may also create a testamentary trust that is effective only after the death of the testator.
Requirements for creation
Any person over the age of majority and of sound mind can draft his or her own will without the aid of an attorney. Additional requirements may vary, depending on the jurisdiction, but generally include the following requirements:
- A testator is a male and a testatrix is a female
- The testator must clearly identify himself or herself as the maker of the will, and that a will is being made; this is commonly called “publication” of the will, and is typically satisfied by the words “last will and testament” on the face of the document.
- The testator must declare that he or she revokes all previous wills and codicils. Otherwise, a subsequent will revokes earlier wills and codicils only to the extent to which they are inconsistent. However, if a subsequent will is completely inconsistent with an earlier one, the earlier will is considered completely revoked by implication.
- The testator must demonstrate that he or she has the capacity to dispose of his or her property, and does so freely and willingly.
- The testator must sign and date the will, usually in the presence of at least two disinterested witnesses (persons who are not beneficiaries). There may be extra witnesses, these are called “supernumary” witnesses, if there is a question as to an interested-party conflict. In a growing number of states, an interested party is only an improper witness as to the clauses that benefit him or her (this is the case in Illinois, for instance).
- The testator’s signature must be placed at the end of the will. If this is not observed, any text following the signature will be ignored, or the entire will may be invalidated if what comes after the signature is so material that ignoring it would defeat the testator’s intentions.
- An heir, an heiress or multiple heirs must be clearly stated in the text
After the testator has died, a probate proceeding may be initiated in court to determine the validity of the will or wills that the testator may have created, i.e., which will satisfied the legal requirements, and to appoint an executor. In most cases, during probate, at least one witness is called upon to testify or sign a “proof of witness” affidavit. In some jurisdictions, however, statutes may provide requirements for a “self-proving” will (must be met during the execution of the will), in which case witness testimony may be forgone during probate. If the will is ruled invalid in probate, then inheritance will occur under the laws of intestacy as if a will were never drafted. Often there is a time limit, usually 30 days, within which a will must be admitted to probate. Only an original will can be admitted to probate in the vast majority of jurisdictions – even the most accurate photocopy will not suffice.
There is no legal requirement that a will be drawn up by a lawyer, although there are pitfalls into which home-made wills can fall. The person who makes a will is not available to explain him or herself, or to correct any technical deficiency or error in expression, when it comes into effect on that person’s death, and so there is little room for mistake. A common error (for example) in the execution of home-made wills in England is to use a beneficiary (typically a spouse or other close family members) as a witness – although this has the effect in law of disinheriting the witness regardless of the provisions of the will.
Some states recognize a holographic will, made out entirely in the testator’s own hand (or, nowadays, typed in a word processor). Contrary to popular opinion, the unique aspect of a holographic will is less that it is written by the testator and more that it need not be witnessed. A minority of states even recognize the validity of nuncupative wills, which are expressed orally. In England, the formalities of wills are relaxed for soldiers who express their wishes on active service; any such will is known as a serviceman’s will.
A will may not include a requirement that an heir commit an illegal, immoral, or other act against public policy as a condition of receipt. In community property jurisdictions, a will cannot be used to disinherit a surviving spouse, who is entitled to at least a portion of the testator’s estate. In England, a will may disinherit a spouse, but close relations excluded from a will (including but not limited to spouses) may apply to the court for provision to be made for them at the court’s discretion.
It is a good idea that the testator give his executor the power to pay debts, taxes, and administration expenses (probate, etc.). Warren Burger‘s will did not contain this, which wound up costing his estate thousands. This is not a consideration in English law, which provides that all such expenses will fall on the estate in any case.
Types of wills generally include:
- nuncupative will – oral or dictated
- holographic will – written in the hand of the testator
- will in solemn form – signed by testator and witnesses
- self-proved will – in solemn form with affidavits of subscribing witnesses to avoid probate
- notarial will – will in public form and prepared by a civil-law notary (civil-law jurisdictions and Louisiana)
- mystic will – sealed until death
- serviceman’s will – will of person in active-duty military service and usually lacking certain formalities
- reciprocal wills – wills made by two or more parties that make similar provisions in favor of each other
