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Drafting a will

A will may seem simple, but drafting and execution errors are easy to make

by Curtis Lee | Contributor
December 19, 2019

Wills allow the wishes of the recently deceased to be carried out. However, an error in the preparation of the will or its execution can prevent some or all of these wishes from being honored.

Wills are simple, yet complex documents. On one hand, they're simply setting out someone's wishes to be carried out after they pass. On the other hand, there can be complications in understanding the intentions of the deceased, as well as confirming the will's authenticity.

Most of the time, the terms in a will get carried out without issue and the decedent's wishes are honored. But sometimes, even the simplest of wishes go unfulfilled because of some confusion in what the will says. Other times, the contents of the will are perfectly explained, but the will wasn't properly created and therefore must be disregarded by the court.

What is a will?

A will (sometimes referred to as a last will and testament) is a legal document that declares what your wishes are when you die. The will sets out how your assets are to be distributed as well as identifies a guardian for your minor or adult disabled child, if applicable. The will also designates an individual to carry out your wishes, often called a personal representative.

How is a will created?

The creation of a will depends on the type of will and the state in which it originates. Each state has its own laws and rules on creating wills.

For example, in some states holographic wills (handwritten wills) are never valid and will be ignored by the probate court. In other states, they'll accept a will written in crayon on a paper placemat from a local restaurant as long as it can be proven it's authentic.

Generally speaking, to have a valid will, you will need to:

  • Put the will in writing
  • Sign and date the will
  • Have two adult witnesses sign the will

Not all of the above will apply in every state. In at least one state, the witness requirement can be replaced with a notarization. In some states, the witnesses must not just be adults, but be individuals who will not inherit anything under the will.

Despite how simple and straightforward these requirements are, mistakes can still occur. Sometimes these mistakes invalidate the entire will. Other times, they may simply allow a wish of the deceased to go unfulfilled.

Failure to include a residuary clause can cause problems

What are some errors that can occur and what are their consequences?

When it comes to drafting the will, there are a few potential mistakes that could cause problems later on. First, there's the failure to include a residuary clause.

A residuary clause is a provision that serves as a catch-all for the property not specifically gifted in other parts of the will. For example, someone might specify who gets the house, the car, the money and the personal belongings in the house. But what about the boat?

If the will mentions nothing as to who gets the boat, the boat may not go to whomever the decedent would have liked it to go to. That's because a court may apply the state's intestacy rules to decide who gets the boat. In other words, when it comes to deciding who gets the boat, the court will act as if there is no will at all.

The residuary clause prevents this and serves as a way to distribute “everything else” not otherwise mentioned in the will. A will missing a residuary clause can still be valid and enforceable. It's just that the person who has died may not have all of his or her property distributed as they would have liked.

Second, the will is not put into writing correctly. This means the format should be consistent throughout the will. For instance, if you're going to type up the will, do not include any handwritten portions except for the signatures, dates and notarization.

This is important because the handwritten addition can be interpreted as modifying the will after it has been executed and without the knowledge or consent of the owner of the will. How the court handles these handwritten additions will depend on the other facts in the case, but it's possible it could invalidate at least portions of the will.

Self-proving affidavit

As for the execution of the will, there are several potential issues. One has to do with notarization. In most states, this isn't required. However, it can help to have a self-proving affidavit at the end of the will and this affidavit must be notarized.

A self-proving affidavit is a sworn statement that helps prove the validity of the will. This can save time during the probate process where a court will have to confirm the will's validity and may do so by asking the witnesses who signed the will to testify or submit a sworn statement to the court.

Another potential pitfall during the execution of the will has to do with witnesses. If there aren't enough witnesses to the will, or the witnesses never saw the person signing the will, then the court may refuse to accept the will into probate and will instead declare the will as invalid.

Also, in some states, the adults serving as witnesses may not be beneficiaries to wills they are signing. However, if this becomes an issue, it usually won't invalidate the entire will. Instead, the witness will simply be unable to inherit anything pursuant to the will.

One exception to the witness requirement is the holographic will, where witnesses are not required. But not all states will accept holographic wills.

The need for a self-proving affidavit

Self-proving affidavits are not required for a valid will. But in most states, it speeds up authentication of the will during the probate process. There are some states where a self-proving affidavit will not be accepted for validating the will or a will can be validated without the use of a self-proving affidavit.

States that Have No Need for Self-Proving Affidavits States that Will Not Accept a Self-Proving Affidavit to Validate a Will
Maryland Washington, D.C.
Illinois Ohio

How do I create an estate plan?

There are numerous options and scenarios to consider when developing an estate plan that protects your legacy and achieves your objectives, and important decisions should be made with the advice of qualified lawyers and financial experts. Membership with Legacy Assurance Plan provides members with valuable resources and guidance to develop comprehensive estate plans that take life's contingencies into consideration and leave a positive impact for generations to come. Legacy Assurance Plan members also receive peace of mind that a team of trusted, experienced professionals will assist them in developing legal, financial and tax strategies that will meet their needs today and for years to come through periodic reviews.

This article is published by Legacy Assurance Plan and is intended for general informational purposes only. Some information may not apply to your situation. It does not, nor is it intended, to constitute legal advice. You should consult with an attorney regarding any specific questions about probate, living probate or other estate planning matters. Legacy Assurance Plan is an estate planning services company and is not a lawyer or law firm and is not engaged in the practice of law. For more information about this and other estate planning matters visit our website at

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