Questions About Wills

The requirements for a valid will vary somewhat by state, but the general requirements include:

1. 1
   Legal Age In most states, you must be at least 18 years old to make a binding will. In some states, the age limit is as low as 14 or 16, with exceptions for emancipated minors or when a minor has received a large inheritance.
2. 2
   Testamentary Intent You must be clear in expressing your intention for the document to function as a will.
3. 3
   Testamentary Capacity You must be of sound mind and aware of your actions and their implications when the will is created. It's a common misconception that someone with dementia can't create a legally binding will — they can if they are lucid when the will is made. In these cases, a letter from a doctor confirming mental competence is a wise precaution.
4. 4
   Signed The will must be signed free of fraud, duress, or coercion. A representative can sign on your behalf if you are physically unable to do so.
5. 5
   Witnesses In the vast majority of states, two adult witnesses must also sign the will. In some states, the witnesses must be "disinterested" — meaning they will not benefit from the will in any way.

It's important to keep a will up-to-date. If you wish to make changes, you have two options: create a new will or use a codicil to add changes to your existing will.

Either a codicil or a new will requires a signature and the signatures of two (or more) witnesses to be legally binding.

• Codicil — A good option for small changes. It amends specific provisions of the existing will without replacing it entirely.
• New Will — More appropriate for larger changes, such as changing your beneficiaries, naming a new executor, or significantly restructuring distributions. A new will can also clear up any confusion that might arise from multiple codicils.

In general, it's a good idea to create a list of specific items to be bequeathed and to whom — unless you want to leave all of your property to one person or there are only a few items you wish to distribute separately.

When making gifts of specific items, it's important to describe them as clearly as possible. The more detail you provide, the easier it will be for the executor to identify and locate the property.

• Listing specific assets ensures property is passed on exactly as you intend.
• A detailed inventory can help avoid disagreements among heirs and beneficiaries after your death.
• Include serial numbers, descriptions, or physical locations for items of significant value such as jewelry, art, or collectibles.
• Some states allow a separate "personal property memorandum" — a list referenced in the will — that can be updated without re-executing the entire will. Ask your attorney if this is an option in your state.

There is no specific age at which you should make a will. Adults of any age can benefit from one, even without significant assets. However, there are many circumstances in which you should start thinking seriously about creating a will. If any of the following apply to you, a will is important:

• You are married.
• You have children — especially if you are married with children from a previous marriage you want to receive assets.
• You have savings, investments, real estate, or a positive net worth.
• You own a business or have a business partnership.
• You have pets you want cared for after your death.
• You want to make charitable gifts from your estate.

When someone dies without a will, they have died "intestate." This means the probate court will appoint a personal representative or administrator to:

• Identify and inventory estate assets
• Receive and evaluate creditor claims
• Pay valid creditors and any outstanding taxes
• Distribute remaining property according to the state's laws of intestate succession

What happens next depends on the state and the circumstances surrounding the missing will:

1. 1
   Will Was Revoked If the will is missing because it was intentionally revoked by the decedent (destroyed, torn up, or replaced), an earlier will may be used — or the state's intestate succession laws will govern distribution.
2. 2
   Photocopy With Evidence In some cases, a photocopy of the will combined with evidence that the decedent signed the original — and proof that the original was not intentionally destroyed — may be accepted by the court.
3. 3
   No Will Found at All If a will can't be found and no one is certain a will even existed, the state's intestate succession laws are applied by default.

A will can be drafted in several ways:

• With the help of an attorney — The most reliable option, especially for complex estates, blended families, business interests, or situations where you want to minimize the chance of a will contest.
• Using will-maker software or online services — A lower-cost option for straightforward situations. Look for software that is specific to your state's laws.
• Using blank will forms — Templates are available, but must comply with your state's execution requirements to be valid.
• On your own (holographic will) — Some states recognize entirely handwritten wills without witnesses, but many do not. This approach carries significant risk.

As a general rule, a will should remain valid even after moving to a new state. Most states recognize a will that was properly executed under the laws of the state where it was created. However, each state has its own laws on what makes a will valid and legally binding — and those specific legal provisions can sometimes make an out-of-state will invalid, or cause certain parts of it to become void.

• Even if the will is valid in the new state, certain provisions may need to be updated — for example, the named personal representative may not qualify under the new state's law.
• Florida example: Florida requires that the personal representative be related by blood or a degree of marriage to the decedent — or, if not, be a Florida resident. Florida also does not recognize holographic (handwritten) or nuncupative (oral) wills, even though most states do.
• If you move to a new state, it's wise to have your existing will reviewed by a local estate planning attorney to confirm it remains valid and that all provisions still accomplish your goals.

The dramatic "reading of the will" depicted in movies and television is mostly fictional — and it essentially never happens in modern times. This practice was only common in the distant past when many people were not literate.

No state requires that a will be read aloud to anyone. Once the will is filed with the probate court, it becomes a matter of public record. Anyone — including the general public — can request a copy and read it.

• Beneficiaries and heirs are typically notified by the personal representative or the probate court that the will has been filed and that they have rights in the estate.
• Because a probated will is a public document, it can be viewed at the probate court clerk's office or sometimes online through the court's public records system.
• If privacy is a concern, placing assets in a revocable living trust keeps them out of probate — and therefore out of the public record.