One of the most common reasons a will or trust is declared invalid is failure by the testator or grantor to follow all required formalities for executing a will or trust. Also, people commonly decide to change their will or trust by making handwritten notes or crossing through language on their will or trust in an attempt to make a codicil or amendment. Codicils and amendments must be executed in accordance with the same requirements as the original will or trust.
For tips on how to properly make changes to your will and avoid costly mistakes, see change my will.
The execution requirements for wills and trusts are set by state law and can usually be found in the state's probate, estate or trust statutes. Before executing any estate planning document, become informed about execution requirements for wills and trusts in your state and consult an attorney for guidance. For information on the requirements for executing estate planning documents in your state, see state laws.
If you are ready to execute a new will, power of attorney or health care directives or want to make changes to your existing estate plan, one option is to use
estate planning software to print your documents at your home or office.
Use a Self-Proving Affidavit
When making a will you must adhere to all state law requirements that apply to wills, such as testamentary capacity of the testator and the type of individuals that can witness the will. If you make an error in any of the execution formalities, your will may be declared invalid and bequests that you make to your beneficiaries may be void.One important step you can take in most states to ensure your will is upheld is to complete a self-proving affidavit when you make a will. A self-proving affidavit is signed by the testator in the presence of a notary public and attached to the will. See
self-proving wills. This document makes it easier to prove the validity of your will and may make it easier for your executor or personal representative to settle your estate. A self-proving affidavit must contain certain provisions to comply with applicable state law, so make sure it is drafted by a licensed attorney and executed according to state law requirements. State statutes often contain sample forms of self-proving affidavits.
To find out if your state has a statutory form of self-proving affidavit, go to
self-proving will forms.
The Best Way to Execute a Will
It is not easy to follow all the execution requirements for making a valid will. Therefore, the best way to execute your will is at a lawyer's office with the help of an attorney. If you are ready to execute your will and other estate planning documents, call an attorney and explain you need help executing your will. The attorney can arrange for witnesses to be present to witness your will signing and for a notary public to be available if you sign a self-proving affidavit to attach to your will.
There are several advantages to executing your will at an attorney's office. First, it is the best way to ensure your will is properly executed and that all your estate planning documents are in order. An attorney familiar with the laws of your state can advise you on how a will signing should actually be performed. An attorney can also provide instructions on how to properly store your will and how often you should update your will.
If you do not have an attorney to help with your will signing, you can find one that specializes in estate planning with a few simple steps. For tips on how to find a qualified attorney and discuss their fee arrangements, go to
finding an attorney.
Executing Estate Planning Documents
When it comes to executing estate planning documents, the devil truly is in the details. If you have any doubt about whether you can follow the execution instructions to the letter, you should have a lawyer prepare your will, living trust, power of attorney, and other estate planning documents rather than using a do it yourself approach.
If you have no legal education or training, it is likely you will miss one or more steps or execution formalities if you attempt to use do it yourself estate planning forms instead of hiring an attorney. Unfortunately, what appear to be small, unimportant details to a layperson are often critical details to making an estate planning document valid. One simple error can make the entire document unenforceable resulting in the testator dying without a valid will, or subjecting his entire estate to probate in the case of an invalid living trust. This occurs with great frequency in the case of changes to an existing will, called a codicil, and amendments to living trusts.
There are many articles and resources on Pennyborn.com to help you find the information necessary to properly execute your estate planning documents. When doing so, it is important to pay close attention to all instructions received from your attorney or any service you use to prepare your estate plan.
Have Your Will Properly Witnessed
If you are planning to execute your will, remember to sign it in the presence of the required number of witnesses. State law establishes the required number of witnesses and other requirements individuals must meet in order to witness a will, such as being of a certain age. If you do not have your will properly witnessed, your estate may be distributed as if you died without making a will.
The following is an example of how failure to have a will properly witnessed caused the will to be declared invalid:
Patty was planning to leave on a trip around the world. She was in a hurry to make a will and printed an estate planning form she found online. She remembered a friend told her about a notary public at a local shipping store so she went there with her printed will form in hand.When Patty sat down with the notary public, she read the will form and realized she needed to sign it in the presence of two witnesses. The owner of the store offered to have two clerks sign the will as witnesses. Patty was thrilled everything seemed to be going so smoothly and was preoccupied with thoughts of her trip. She forgot to ask the witnesses to write their addresses next to their signatures on the will. The will form Patty found online did not contain a self-proving affidavit, so she did not sign one when she executed her will.
Patty died several years later. When her executor presented the will for probate, neither of the witnesses to her will could be located. As a result, Patty's executor was not able to distribute her estate according to Patty's wishes and the bulk of her estate passed to an heir Patty had attempted to disinherit in her will.
Patty had good intentions when she made her will. She wanted to have her estate in order and did what she thought was necessary to make a valid will. However, because Patty overlooked the importance of having an attorney draft her will and assist her with the will signing, none of Patty's plans for her estate were carried out.
Tips on How to Properly Execute a Will
1. If you are using a will form or estate planning software to make a will, read all instructions on the form and any instructions provided with the
estate planning software for properly executing your will.
2. If your state allows self-proving affidavits, make sure a self-proving affidavit is attached to your will and that the affidavit is properly signed and notarized.
3. Determine how many witnesses are required to witness your will signing under applicable state law, then choose your witnesses carefully. Verify that all witnesses are of the required age and meet other requirements for serving as a witness. For example, do not have a thirteen year old witness your will and do not have a person that may be suffering from dementia witness your will.
4. Do not have your will witnessed by any person that is a beneficiary of your will. Although you may be more comfortable around your close family members, it is not a good idea to have them serve as witnesses to your will.
5. After your witnesses sign the will, review the document to make sure they printed their names and addresses below their signatures and complied with all other requirements of applicable state law.
6. Remember to put the date of execution on your will.
7. Have an attorney examine your will, self-proving affidavit, and any other estate planning documents to confirm they were properly executed and that no changes are necessary. One of the many advantages of having your will prepared by an attorney is that he or she can also oversee your will signing to ensure all formalities are followed to make your will valid.
Capacity to Make a Will
Another important aspect of making a valid will is testamentary capacity. In general, the person making a will must be of sound mind and have the mental capacity to make a will.
If a person is suffering from an illness that affects their mental abilities, such as Alzheimer's disease or dementia, they may not meet the legal requirements to make a valid will. See
dementia and wills. Also, if an individual has been placed under a conservatorship and a court has appointed a guardian for them due to a disability, they may not possess the requisite testamentary capacity to make a will.
If you are concerned about whether a family member has the testamentary capacity to make a valid will, consult an estate planning attorney. An attorney can advise you on the options for making an estate plan in these circumstances.
This article was updated on November 29, 2016.