What Is a Will?
A will is a written or oral communication by a person stating how they want their property disposed of at death. This person is known as the “testator.”
Different Types of Wills
There are several different types of wills one can use to dispose of his or her estate:
- Self-proving will: A will that has been witnessed and signed with all of the formalities required by state law. This is the most common will.
- Holographic will: A will that is handwritten without the presence of witnesses. Very few states recognize these types of wills, and only in limited, specific circumstances.
- Oral will: This type of will is an unwritten disposition of property, whereby the individual orally communicates his or her wishes. Oral wills are only recognized in a few states and usually only in compelling situations.
Requirements for a Will
There are several requirements for a self-proving will:
1. Be of sound mind. This means that you must:
- Be at least 18 years old or an emancipated minor
- Know what a will is
- Know that you are making a will
- Understand your relationship between yourself and the people who care for you (i.e. immediate family members, including spouse and family)
2. Expressly state that this document is your will.
3. Sign and date the will.
4. Signed (“attested”) by at least two or three witnesses: The number of required witnesses depends on state law. In addition, most states require that the witnesses not inherit anything from the will.
- The witnesses should sign the will in the testator’s physical presence
- The witnesses should sign the will at the same time
4. Have one substantive provision that:
- Appoints a guardian for any minor children
- Lists who inherits specific items
- States what happens to remaining property not specifically mentioned in the will
6. Appoint an executor
- Responsible for supervising the distribution of property
- Makes sure that all your debts and taxes are paid
Requirements for a Holographic Will
These are the requirements for a holographic will:
- Handwritten: The entire will should be handwritten. Commercial form wills are typically not valid as holographic wills because they are not completely handwritten by the testator.
- Material provisions: In the event that the entire will cannot be handwritten, the material provisions of the will should at least be handwritten. The material provisions of a holographic will are the person who is to receive the gift and the gift itself.
- Signature: The holographic will must have a handwritten signature. The signature cannot be typed. The signature need not be the testator’s legal name, but the mark on the will should be something that most people who know the testator would recognize as an alias for the testator.
If you choose to create a will, consulting with a lawyer is always a wise thing to do. The potential tax implications and legal formalities of will drafting make a lawyer’s counsel indispensable. A lawyer can explain all your options and help you understand what types of wills are right for you and your family.