Who can make a last will? Under the Uniform Probate Law (model law passed by professional association) and the laws of most US states, any individual 18 or more years of age who is of sound mind may make a will.
Must a will be typed or can it be hand-written? With the exception of what are called "holographic" wills, a last will must be typed or printed as opposed to hand-written. The general requirements of a "holographic" will are that it be signed by the maker and that "material portions" of the document are in the maker's handwriting. See Montana Probate Code Section 72-2-522(c)(2) for an example of state law on this point. Not every state allows hand-written holographic wills so please check the requirements of your state before attempting to prepare a holographic will.
Other than "holographic" wills, what are the general requirements for execution of a valid last will? The general requirements are as follows: (a) the document must be written (meaning typed or printed), (b) signed by the maker, and (c) signed by two witnesses who were present to witness the execution of the document by the maker and also witnessed each other sign the document. Vermont requires three witnesses instead of two. Louisiana requires that the maker affix his signature to every page of the document on which material provisions are found in addition to the last page of the document and, also, requires that the execution of the maker of a last will be attested to by a notary. Pennsylvania technically does not require that a last will be witnessed to be effective; however, there must be two witnesses in order to probate a will under Pennsylvania law. Link.
Who may serve as a witness to a last will? Generally, any mentally competent person over the age of 18 can serve as a witness. However, most states have some restrictions against beneficiaries of the will also serving as a witness. Please click on your state from the list in the upper right-hand column for more information. Regardless of whether or not your state has a statute prohibiting or discouraging beneficiaries from serving as a witness, it is always best to have individuals who are not named as a beneficiary or executor in the will serve as witnesses. The reason for this is to remove any potential implication that the witness exerted influence over the maker of the will when the document was executed.
How many witnesses are required? In all states except Vermont, two (2) witnesses are required for a valid last will. In Vermont, three (3) witnesses are required. If your last will is notarized, the notary does NOT count as one of the witnesses.
Must my last will be notarized? Only in the State of Louisiana must a last will be notarized. In all other states, notarization is not required but it is recommended. By notarizing a last will, the document becomes "self-proving". This means that there are no additional requirements necessary in order to get the document admitted to probate court after the death of the maker. If a last will is not notarized, then the witnesses must sign declarations as to the authenticity of the document which are filed with the last will in the probate court.
Signature upon a last will? In all cases, a last will must be executed on the last page thereof by the maker (excluding any final page that consists solely of a notary certification). It is recommended, but not required, that the maker also sign or initial the bottom of every page of his or her last will as well executing the final page. However, in the State of Louisiana only, the maker must sign every page of his or her last will.
2: Body of Last Will.
Typical elements of Last Will. The typical sections of a last will are as follows:
Naming of executor;
Provisions relating to burial;
Payment of creditors;
Charitable bequests;
Specific bequests of property to beneficiaries (i.e., "I hereby bequeath my 1966 Corvette to nephew Samuel.");
Bequest of remainder or residuary of estate (i.e., "I hereby bequeath the remainder of my estate to my Spouse."); and
A list of powers that the executor of the estate shall possess.
Contingent Beneficiaries. A "contingent beneficiary" is one who is to receive the bequest should a stated contingency occur prior to the death of maker of the last will. Most often, the contingent event is the death of the beneficiary prior to the death of the maker of the last will. The following is an example of a bequest that names a contingent beneficiary: "I hereby bequeath $10,000 to my brother John and, should he predecease me, then this bequest shall go to his children in equal shares." In this example, the children of John are known as "contingent beneficiaries". When contingent beneficiaries are NOT named in the last will, the bequest goes to the heir(s) of the original beneficiary. Returning to our prior example, let us assume it reads: "I hereby bequeath $10,000 to my brother John" without naming a contingent beneficiary. In this case, should John predecease the maker of the last will, the heirs of John receive the bequest. If John is survived by a spouse who was named as the sole beneficiary in his last will, then she would receive the $10,000 bequest instead of John's children per the prior example where contingent beneficiaries were named.
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