Make your last Will and Testament Legal – Find out what are the next steps after you made your Last Will

All of the witnesses must watch you and the other witnesses sign this Will. You must verbally declare that the document is intended to be his or her Last Will and Testament, but the witnesses do not need to read the Will.

You should initial on the bottom margin of each page of the Will. This is done to prevent the substitution of pages.

What to do with your Will

You should keep the original copy of the Will in a secure location such as a safe deposit box at a bank, because only the signed original can be probated. A copy could be kept in the Will writer’s home files.

You may wish to provide a copy to your lawyer, or possibly to the person named as Executor or Trustee. Before distributing such copies, you should consider that it may become awkward to retrieve them later, should you decide to modify the Will or change the Executor or Trustee.

Related Article: Will vs Living Trusts

The Self-Proving Affidavit

The self-proving affidavit (“Proof of Will” in some states) is a document that should be signed in front of a notary public and attached to the end of the Will. The affidavit recites that the requisite formalities were observed in signing the Will.

Although attaching the affidavit has nothing to do with the legality of the Will itself, it can speed the admission of the Will to probate after the death of the Will writer because it eliminates the need to have a witness appear at the probate proceeding to testify that the formalities in signing the Will were followed. The witnesses may not be available later when they are needed. A self-proved Will may be admitted to probate without additional witnesses or affidavits, but it is still subject to contest on such grounds as undue influence, lack of testamentary capacity, or prior revocation.

This Will is not valid unless it is signed by a Will writer who is of “sound mind” and of the minimum age or older for this state. In most states, the minimum age is 18. Some states permit an individual below the minimum age to sign a will if the person is married or in the military. Being of “sound mind” requires that the Will writer: (a) know that he or she is signing a will, (b) know the general nature and extent of his or her property, and (c) know the descendants or other relatives that would ordinarily be expected to share in the estate.

Important Details

The Will should be signed by you in the presence of three DISINTERESTED adult witnesses. Many states require only two witnesses, but the signature of a third witness provides some protection against the possibility that one of the witness’ signatures will be invalid for some reason. For example, a person should not be a witness if that person is a beneficiary under the Will. In most states, if a beneficiary’s signature is counted in order to satisfy the minimum number of witnesses, then the Will is not necessarily invalidated, but that “interested witness” may not receive a share of the estate any larger than if the Will writer had died without a will.

The witnesses should be satisfied that the Will writer willingly signed the document as his or her free and voluntary act, and that the Will writer was of full age and sound mind.

The date should be filled in wherever requested, using the date on which the actual signing takes place. This step could become essential to the validity of the Will (for example, if this Will revokes an earlier Will).

The number of total pages in the Will should be indicated, including the page(s) on which the witness signature lines appear. The page with the affidavit, if included, should not be counted because the affidavit is not a part of the Will itself.

If you have a life insurance policy, make sure to update your beneficiaries to keep them aligned with the beneficiaries designated in this Will.

This Will does not dispose of property which passes on the death of the Will writer to a person by operation of law or by any contract. For example, the Will does not dispose of joint tenancy assets or the Will writer’s spouse’s share of community property, and it does not normally apply to proceeds of life insurance on the Will writer’s life or to his or her retirement plan benefits.

This Will is not designed to reduce taxes. The tax results of the choices made in this Will should be discussed with a competent tax advisor.

In most states, the Will cannot be changed by adding, deleting, or modifying words on the face of the Will. Such changes are usually disregarded. When changes are desired, it is recommended that the Will be revoked by signing a new Will which expressly revokes the former Will. For example, if the Will writer marries or divorces after the Will is signed, he or she should make and sign a new will.

Reasons to Update

  • A change in marital status.
  • The birth or adoption of children.
  • A new Will with provisions for minor children should be created.
  • A move to another state.
    A significant change in financial status.
  • A significant change in tax laws.
    The death of a beneficiary. For example, your spouse or your child.
  • A desire to add or change beneficiaries.
  • The death or incapacity of a named executor, guardian, or trustee.

When to Consult a Lawyer

As with any legal document, it is always good practice to discuss your specific situation with a lawyer. If the Will writer is unable to sign due to physical disability, another person may be able to sign on behalf of the Will writer, in the Will writer’s presence, and at the express direction of the Will writer. However, this document does not provide the necessary language for another person to sign for the Will writer. For assistance with this procedure, a lawyer should be contacted.

Related Article: Wills and Living Trust discount for AARP members and seniors

Related Article: Funding a Living Trust– How to put real estate property and other assets in a Revocable Trust

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