stocksnap_v8a98c0u96What is a Will really? Is it a written statement of your wishes drafted on your deathbed? Is it a form you can print online? Today, we will discuss what a Will is, what a Will isn’t, and what a Will should be.

What are the Legal Requirements of a Will?

A Will is a document expressing the wishes of a testator (anyone dying with a Will in place) pertaining to the distribution of the testator’s property after death. A Will generally must be:

1. In writing;
2. Signed by the testator in the testator’s name (or by another at the direction and in the presence of the testator); and
3. Signed by two witnesses of the testator’s signing of the Will
(The witnesses may instead witness the testator’s acknowledgment of the signature, or the testator’s acknowledgment of the Will itself, in lieu of witnessing the signature itself.)

Can I Write my own Will?

If a Will does not meet the requirements mentioned above, it may still be considered a holographic Will, even without witnesses, so long as the signature and ‘material portions’ of the Will are in the testator’s handwriting. This is a gray area where you do not want to venture. Holographic Wills are recognized by the state of Utah, but those who write their own Will without advice may have a higher likelihood of an expensive Will contest. After an expensive appeal process, the Supreme Court of Utah in one case refused to acknowledge a holographic Will that had been written on a series of unpaginated and unbound notecards. (In re Estate of Erickson, 806 P.2d 1186 (Utah 1991)).

If you absolutely must write a holographic Will, please write the entire thing on one page entirely in your own handwriting, but I have seen even these Wills questioned. Issues such as spousal inheritance rights, inheritance for minor or disabled children, and distribution of retirement accounts often go unaddressed, and lead to problems for the executor of estates distributed according to handwritten Wills.

What Should my Will Look Like?

An ideal Will is something completely typed, witnessed, and accompanied by a self-proving affidavit (notarized statement that witnesses agree that testator had the mental capacity necessary to execute a Will). If you really want to, you can type it yourself or print a sample online, but these often cause problems such as those accompanying handwritten Wills. A Will drafted by an estate planning attorney will take into consideration issues such as needs of minor children, blended family issues, nonprobate assets, and family dynamics.

Too often, Wills are pieces of paper that help people sleep at night, but keep their children awake in the months after their passing because the Will was poorly-drafted and caused more problems than it intended to solve. A properly-drafted Will is a plan that remains effective after your passing and lets your children focus on the transition to life without a parent rather than losing sleep over a messy transfer of their parent’s wealth.

Call us today for a free consultation about your family’s goals and options going forward.



Content adapted from Chapter 3 of Mr. Melling’s Book: The Utah Uniform Probate Code: A Quick-Reference Guide for Practitioners and Students