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How wills are executed

How wills are executed
(Image credit: Getty)

Creating a will ensures that your estate will be passed on to those you love in accordance with your wishes and, for those left behind, it can make an already emotional time that bit easier to negotiate. 

Thanks to the internet and a little help from the best online will maker, it is now easier than ever to create a will from the comfort of your own home. Plus, you can be rest assured that an online will is just as legal as a will drafted by a legal professional, providing it is signed and witnessed correctly. Signing a will and making it legal is known as executing a will. 

Executing your will 

To execute a will in any state of the United States, you must sign the document in the presence of at least two witnesses and they, too, will need to sign the will. 

State law varies slightly regarding will requirements, so it’s crucial to find out the rules specific to the state where you live. However, there are a number of underlying rules that apply across most jurisdictions and these are as follows:

Testator’s intent

For a will to be valid, the person writing the will – the testator – must have the intention that the document they produce will be their last will and testament. In other words, they don’t intend to make subsequent changes to the document or write a new one to replace it. The document must also be effective in distributing their property when they die. 

Mental capacity

The testator needs to be “of sound mind” when creating their will which generally means they must be 18 years or older and be conscious and aware of the fact they are making a will. Some states also require that the testator has an understanding of the property they have to distribute and what it means to leave it to someone. 

Capacity is an area that is frequently contested, with arguments often including that the testator was under duress, threats, fraud or coercion and didn’t write the document under their own free will. So if you have any concerns about your capacity or believe someone might challenge it, it is best to seek advice from a lawyer.  

How wills are executed

(Image credit: Getty)

Choice of witnesses

Every state requires that you choose two witnesses to sign your will. Each witness must be at least 18 years old and should not be beneficiaries of your estate – in other words they do not stand to inherit under the terms of the will. This usually includes a beneficiary’s spouse.

It is also advisable to choose witnesses who are likely to be around when you die as the probate court may need to contact them. 

The signing of the will

Once you’re ready to sign your will, the below steps should be followed:

  • Check your will: Read your will carefully to ensure there are no typos or mistakes, that you understand every word and that it accurately reflects your wishes. 
  • Gather your witnesses: Once you’re satisfied that your will is accurate, gather together your witnesses so that you can all sign your will at the same time. This isn’t a legal requirement in every state, but it is usually the recommended option. 
  • Make a formal statement: You will need to state that you have gathered everyone to witness the signing of your will. Witnesses do not need to read the will or know its contents, but you should declare that you intend the document to be your will.
  • Initial each page: Mark your initials at the bottom corner of each page of the document and ask your witnesses to do the same. 
  • Sign and date your will: Sign your name and write the date on the last page of the document and ask your witnesses to do this too. If your name is not typed on the last page you should print your name, and your witnesses should also print their names and write their current addresses.

Once this has been completed, your will is executed. This means that if you were to die at any point, your executor could submit your will to the court for it to be probated. 

Note that even though the words are similar, your executor (the person you nominate to deal with your estate when you pass away) does not need to be involved with executing your will.  

Notary public

If it is created properly and witnessed, a will does not need to be notarized if judged valid in court. However, if you want to avoid delays when it comes to distributing your estate, in most states it can be worth including a self-proving affidavit to your will. This is a brief statement to say that the will was fully executed, and it allows your will to be “proven” to the probate court. 

The self-proving affidavit will need to be signed by you and your witnesses and notarized by a notary public. Be aware that most notaries charge a fee for their services.  

How wills are executed

(Image credit: Getty)

Making changes to your will 

Once your will has been drawn up, it is important to review it regularly to ensure it still accurately reflects your wishes and that no amendments need to be made. 

You may need to amend your will if, for example, you:

  • Get married
  • Get divorced
  • Have another child
  • Acquire more property
  • Sell property.

If only minor changes are required, for example you want to change the name of an executor, you can usually add a supplement known as a codicil. However, you will need to make sure it is tailored to the state where you live, and it must be executed in the same way as a will. Note that many online will makers allow for amendments to be made free of charge. 

For more significant changes to your will, you’ll need to make a new will and revoke your existing one. 

What else you should consider

As well as creating a valid will, for complete peace of mind it is also worth looking at the best final expense insurance so that your funeral and burial costs won’t be the responsibility of those left behind when the worst happens. Additionally, taking out the best life insurance policy will ensure your family is financially protected in the event of your death. As well as covering mortgage costs, it could also help to provide an income to support your loved ones.