Wills: Questions & Answers

The will is the central estate planning document for most people. Here are some questions we have received, and answers.

When should I make my will?

Question My uncle died without a will, and the resulting uncertainty about what he would have wanted to happen to his property created a lot of bad feeling among his children. So I know it's important to make a will, but I'm just in my 30s and don't own a lot of valuable property. When should I make my will?

Answer You're not too young to make a will. After all, there's no downside to having one; you can always make a new one later, if your life circumstances change. Most people make more than one will in their lifetime.

And as you found out through your own experience, there can be a considerable downside to not having a will. When someone dies without a valid will, state law steps in. The law dictates who inherits the property, who will serve as executor, and if young children need a guardian, the judge will appoint one for them--all without any input from the deceased parent. Obviously, it's unlikely that state law will line up exactly with what the deceased person would have wanted.

Making a will doesn't have to be difficult or expensive. Most people can prepare a simple will themselves with an online service or software program. If you have questions, consult an estate planning attorney.

For more, see Why You Need a Will

How do I know my will will be enforced when I die?

Question How do I know that after my death, the probate court will enforce my will?

Answer That's a good question to ask, because states enforce strict rules about how wills must be prepared and signed in order to be valid. Generally, a will is legally valid and enforceable if:

  • The document was signed by an adult who had "testamentary capacity" when the will was signed--in other words, the will-maker knew what he or she owned and who his or her family members were, and
  • Two adult witnesses watched the will-maker sign, knew that the document was a will, and signed it themselves.

Each state has its own rules, some of which vary from this standard. For example, in some states the witnesses must be people who don't inherit under the will. And some states allow “holographic” wills, which aren't witnessed but are written and signed in the will-maker's handwriting.

For more, see How To Determine if a Will is Valid

Is a will valid if it was not notarized?

Question I'm the executor named in my dad's will, but his signature on the will wasn't notarized. Is the will valid?

Answer A will doesn't need to be notarized to be valid, so don't worry about the lack of a notary's stamp on your dad's will. Generally, to be valid, a will must be bear the signature of the person who made it (the testator, in legal lingo) and of two witnesses who watched the will-maker sign. Many states also allow "holographic wills," which aren't witnessed, but are written and signed entirely in the handwriting of the will-maker.

It's common for the witnesses to sign another statement, stating that to the best of their knowledge the will-maker was signing his will, was of sound mind, and wasn't under any undue influence from anyone. The signatures on this statement (which is usually in a separate document called a self-proving affidavit, but sometimes incorporated into the will itself) are notarized. This makes the will "self-proving"--that is, after the will-maker's death, the probate court will accept the will as valid without making the witnesses testify about watching the will being signed. But a self-proving affidavit isn't required for the will to be valid.

For more, see How To Determine if a Will is Valid

Can I challenge my dad's will?

Question I don't think my father was of sound mind when he made his will. How can I challenge his will?

Answer You may have a tough row to hoe if you want to prove that your father didn't have the mental capacity to make a will at the time he made it. The probate court will assume that he was of sound mind, so it will be up to you to provide convincing evidence otherwise.

Forgetfulness, by itself, isn't enough to prove that someone was of unsound mind. You'll have to show that your father didn't know who his family members (the people to whom it would be expected that he would leave his property) were, didn't know what he owned, didn't realize he was signing his will, or was under someone else's undue influence.

If his will was properly witnessed--that is, two adults who don't inherit under the will saw your father sign the document--their testimony will be very important. If they state that your father appeared to know what he was doing, you'll have to come up with a way to show that they're wrong.

See these articles: How a Will Can Be Challenged, and How "Undue Influence" Can Invalidate a Will

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