There are certain guidelines you need to follow in wills and trust laws to ensure that your will is legally valid. The sections below cover this topic in more detail.
In most states, a formal will must be written, signed by the person making the will and signed by two or more disinterested witnesses. Some states impose additional requirements, such as requiring that the witnesses sign in each other’s presence and/or in the presence of the “testator” (the person making the will). Because the requirements for a will vary from state to state, it is best to see a lawyer to help you draft your will.
What is a “disinterested” witness?
“My mother’s will was witnessed by the couple who lived next door to whom mom left her favorite tea service. Is the will valid?”
Probably, but this will vary from state to state. The neighbors were not “disinterested” witnesses, since they were given something by your mom’s will. In a few states, this might cause the will to be declared invalid. However, today in most states, the will is valid but the neighbors might not be able to get the tea set.
Lesson: Make sure that the witnesses do not receive any gifts under the will.
About half the states permit handwritten (called “holographic”) wills. Generally, these wills must be in the handwriting of the person making the will and the will must be signed. These will do not have to be signed by witnesses and are usually not witnessed.
The requirements for a handwritten will vary from state to state. Some states require holographic wills to be totally in the testator’s handwriting, while others require only that the material provisions of the will be handwritten.
A few states have enacted laws that contain the text of a standardized will, usually with some mandatory and some optional or alternative provisions. These wills are designed for those who may not want to use a lawyer to draft their will. Blank copies can be obtained from the state bar or a county bar association. They are designed for those with modest estates and simple plans of distribution.
To use the statutory will, a person must select which provisions are desired, fill in the names of the beneficiaries and chosen executor, describe the property being disposed of, sign the will, and have it properly witnessed by two disinterested persons.
Audio or video wills
All wills must be in writing. Therefore, audio or video wills are not valid.