How to Write Your Will

Write and execute your will by following a few simple steps.

The basic requirements for making a valid will are relatively uncomplicated. The person making the will, called "the testator," must be legally competent. To be legally competent, the testator must be over the minimum age set by state law (18 in most states), and of sound mind. A person is considered of sound mind when he understands the nature and extent of the property he owns, and recognizes what lawyers refer to as the "natural objects of his bounty." Generally, that means the testator knows who his family members are, although it doesn't mean the testator actually has to leave them any of his property. The testator also has to know that by making a will he is deciding how his property will be distributed when he dies.

Although the exact form for writing a will can vary, most simple wills follow a similar pattern. The will begins with a title at the top of the first page, such as "Last Will and Testament of John Jones." In the first paragraph, the person making the will states his name, place of residence, and declares that what follows is his last will and testament, and that it revokes any and all previous wills and codicils. This paragraph may also include a statement that the testator is of sound mind and under no duress, but adding such a clause doesn't mean that the will can't be challenged if someone believes you were incompetent or under the undue influence of another when you made the will.

The next paragraph usually describes the testator's marital status, the name of the spouse (if any) and the names of the testator's children.

In the next paragraph, the testator names an executor to manage the details of probate, and authorizes him to hire any professional assistance he needs, such as accountants or lawyers, and to pay for these out of the estate. It can also be used to direct the executor about how any taxes should be paid.

The next paragraphs will make any gifts of specific property to specific beneficiaries. For example, if you want to leave your antique dueling pistols to your nephew Claude, this is the place to do it. If you're leaving your house, car, and boat to your daughter Amie, you'll make that gift in one of these paragraphs.

After you've made specific gifts, you'll make a gift of your residuary estate. Your residuary estate is everything that's left over after you've made all your specific gifts.

After you've made a distribution of all your property, your will must be executed correctly in order to be legally enforceable. In general, this means it must be signed at the end, and in front of the legally required number of witnesses. Most states require two witnesses, while a few others require three. Having more witnesses than required isn't a problem, but having too few witnesses can invalidate your will. Witnesses have to be of legal age, and no one named in the will to receive property (known as a beneficiary) should serve as a witness, since that may also invalidate the will, at least in regard to the property left to that beneficiary.

When you sign your will, most states require that you "publish" it. That means you must tell your witnesses that the document you're signing is your last will and testament, and that you're asking them to sign it as witnesses. The witnesses don't have to know what your will says, but they do have to know that it is your will.

Sign only the original of your will, so that if you decide to change or revoke it later, you'll have to destroy only the original. Signed copies could turn up later and make for a confusing and expensive situation as the court tries to decide which will is the valid one.

In many states, you can create an additional document known as a self-proving affidavit, which you and your witnesses sign in front of a notary public. This affidavit states that you signed your will, the witnesses saw you sign it and signed it themselves as witnesses, and that they believed you were of sound mind and memory at the time of the signing.

A self-proving affidavit can speed up the probate process in the states where they are allowed, since your executor won't have to locate the witnesses and bring them into probate court to testify as to the authenticity of your will.

Once your will is properly signed and executed, you should keep it in a safe place, such as a fireproof box in your home. Don't put your will in a bank safe deposit box, since there can be delays if your state tax authority or the Internal Revenue Service decides to seal the box until an inventory can take place.

While you can pay a lawyer to draw up a simple will, there are some very good software packages that can help you create your own will without a lawyer's help. You may also want to consider using one of the many "will kits" available at book and stationery stores. While it's possible to create a valid will using one of these kits, you must be very careful to observe all the formalities required by your state's laws when you execute the will. However, if the kit doesn't seem to meet your specific needs, or if you don't understand how to use it, you will be better off visiting an attorney for assistance. In most parts of the country, you can have a lawyer write your will, provide the witnesses and supervise the signing for less than $200. Of course, the more complicated your will is, the more a lawyer's assistance will cost.