What are the Requirements for Drafting a Will and Trust?

A will is a legal instrument that makes a disposition of property (distribution to specific people and entities). The individual creating the will is called a “testator.” The executor (a person appointed by the testator in the will) oversees the disposition.

A trust is created by an owner of property. In a trust, a trustee holds legal title to the property. This person is under a legal obligation to manage, invest, and safeguard the trust assets. Assets are distributed to designated individuals, called beneficiaries.

What is Required for a Valid Will?

The most common type of will is called a self-proving will. A self-proving will is one that has been witnessed and signed in accordance with state law formalities. These formalities differ by state.

• Age: The testator must be 18 or older.
• Capacity: The testator must be of sound mind at the time they sign the will.
• Intent: The testator must have the present intent to make a will.
• Signature: The testator must sign and date the will. Another person may sign and date the will if the testator is in that person's presence and directs them to do so.
• End of the Will: The signature must be at the end of the will.
• Witnesses: The testator must declare that the will is theirs and sign in the presence of two witnesses, or acknowledge their (the testator's) signature to the witnesses. The declaration or acknowledgement can be done at the same time, or at separate times.
  • In some states, the witnesses must sign the will while with the testator. In some states, the witnesses must sign the will, one right after the other.
• 30-day Period: The two witnesses must sign the will within 30 days. The 30-day “clock” begins when the first witness signs.

Another type of will is called a holographic will. A holographic will is written by the testator, but without the presence of any witnesses. Some states recognize a holographic will, signed and dated by the testator, as valid.

However, not every state does so it's important to verify with your local laws before you rely on a holographic will. Most states recognizing such wills require that two or more people verify (testify in court) that the will is in the handwriting of the testator.

In an oral will, the testator orally communicates the terms of a will to someone. Most states do not recognize these wills as valid. Some exceptions apply. Some state courts will deem as valid, a will made by a member of the military while deployed.

What Must Be Included in a Will?

In order for a will to be properly executed, a will should have at least one provision directing:

• Appointment of a guardian for children who are minors.
• What person(s) are to receive what distributions.
• How any property not specifically distributed is to be disposed of.
• Appointment of an executor. The executor oversees the disposition of the estate (property and debts) of the deceased individual.

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