Legal Requirements for Wills

You can efficiently and safely write your own legal will using Nolo's Online Will. The program will help you draft a will that reflects your wishes, but it is your responsibility to meet a few legal requirements.

Requirements of You

For a will to be legally valid, both you—the person making the will—and the will itself must meet some technical requirements.

Your Age

To make a will, you must either be:

  • at least 18 years old, or
  • living in a state that permits people under 18 to make a will if they are married, in the military or otherwise considered legally emancipated.

Your Mental Competence

You must be of sound mind to prepare a valid will. The laws generally require that you must:

  • know what a will is, what it does and that you are making one
  • understand the relationship between you and the people who would normally be provided for in your will, such as a spouse or children
  • understand the kind and quantity of property you own, and
  • be able to decide how to distribute your belongings.

This threshold of mental competence is not hard to meet. Very few wills are successfully challenged based on the charge that the person making the will was mentally incompetent. It is not enough to show that the person was forgetful or absentminded.

To have a probate court declare a will invalid usually requires proving that the testator was totally overtaken by the fraud or undue influence of another person—and that person then benefited from the wrongdoing by becoming entitled to a large amount of money or property under the will.

Interestingly, the great majority of undue influence contests are filed against attorneys who draw up wills in which they are named to take clients' property. If the person making the will was very old, ill or suffering from dementia when he or she made the will, it is obviously easier to convince a judge that undue influence occurred.

If a contest seems possible. If you have any serious doubts about your ability to meet the legal requirements for making a will, or if you believe your will is likely to be contested by another person for any reason, consult an experienced lawyer.

Your Residence

To use Nolo's online will, you must have a legal residence in the United States. You can live abroad, but you must need to continue to have ties to your US residence.

Nolo's Online Will is designed to be used for residence in all states except Louisiana and the US Territories.

Requirements of the Will Document

State law determines whether a will made by a resident of the state is valid. And a will that is valid in the state where it is made is valid in all other states.

Contrary to what many people believe, a will need not be notarized to be legally valid. But adding a notarized document to the will verifying that the will was signed and witnessed can be helpful when it comes time to file the will in probate court. This option is available in all but a handful of states. Learn more about The Self-Proving Option.

There are surprisingly few legal restrictions and requirements in the will-making process. In most states, a will must:

  • include at least one substantive provision—either giving away some property or naming a guardian to care for minor children who are left without parents
  • be signed and dated by the person making it
  • be witnessed by at least two other people who are not named to take property under the will, and
  • be clear enough so that others can understand what the testator intended. Nonsensical, legalistic language such as: "I hereby give, bequeath and devise" is both unwise and unnecessary.

The will you make with Nolo's Online Will meets all of these requirements and prints out with clear and detailed instructions for making it legal.

Learn more about Finalizing Your Will and Is Nolo's Online Will Is Right for You.

Dying Without a Will

If you die without a valid will, money and other property you own at death will be divided and distributed to others according to your state's intestate succession laws. These laws divide all property among the relatives who are considered closest to you according to a set formula—and completely exclude friends and charities.

These legal formulas often do not mirror people's wishes. For example, dividing property according to intestate succession laws is often unsatisfactory if you are married and have no children, because most state laws require your spouse to share your property with your parents. The situation is even worse for unmarried couples. Except in a few states, unmarried partners receive nothing. And even in the states that offer exceptions, benefits aren't automatic—eligible couples must register their partnerships with the state.

Learn more about intestate succession in your state.

Also, if you have minor children, another important reason to make a will is to name a personal guardian to care for them. This is an important concern of most parents, who worry that their children will be left without a caretaker if both parents die. Intestate succession laws do not deal with the issue of who will take care of your children. When you don't name a guardian in your will, it is left up to the courts and social service agencies to find and appoint a personal guardian.