What are the formalities required for a valid will regarding: (a) the document, (b) the signature, and (c) the attesting witnesses.
Drafting a will involves a few steps to ensure its validity. Before executing the will, the mental health, or testamentary capacity of the testator (person originating the will), must be determined. Equally important, is that the testator has reached the proper age to legally enter into a contract (the age of majority) as defined by state law. The testator must understand the will provisions including a knowledge of the property (real or otherwise) that is being disposed, and must be able to recognize the designated beneficiaries.
The will document itself must contain several vital requirements to be legal and successful. The signature of the testator, and the date of execution, must final entries. Instructions entered after the final signature are to be considered void. Another need for establishing a valid will, is to witness the testator's signature. Two or three witnesses should be present (beneficiaries excluded) to sign the will and to prove the testator's capacity. If the state laws do not require witnesses at the time of execution, then witnesses may be required to help confirm the testator's signature at probate. This process is referred to as attestation. The witnesses must proclaim to have a familiarity with the testator's signature, and must confirm its authenticity.
Other considerations when drafting a will:
- Testator should use full name.
- The executor is named.
- An alternate executor is named.
- Decide if the executor should post a bond, or if the bond requirement is to be waived.
- List the assets that will pass by terms of the will (probate assets).
- List any specific bequests. List the names, and relationships to the testator, of the beneficiaries to receive assets.
- List additional beneficiaries who may receive assets if the originally named beneficiaries predecease the testator.