What is Required to Make a Valid Will?
Anyone and everyone over 18 years of age should have a last will and testament, also known as a “will.” A will is a critically important legal document that outlines what should happen with a person’s assets, who should take over care of their minor children (if they have them), and who is responsible for seeing that their wishes are fulfilled in the event of their death. Without a will, these decisions are left to the courts and the individual’s family may be left with a lot of hassle, questions, and heartache.
So how do you go about creating a will? The very first step is to contact an experienced Milwaukee estate planning attorney who can answer questions and provide the appropriate guidance for your specific situation. In crafting a last will and testament, your estate planning attorney will ensure all necessary boxes are ticked to make the will a valid, legally-binding document. Please note: while some states may have additional rules and requirements for executing a valid will, the items listed below generally apply to the creation of wills in any state, including Wisconsin. Further along, you will find requirements that are specific to wills made in Wisconsin.
Below is a list of the elements required to make a valid will.
Legal Capacity. An individual must meet certain requirements to have the “legal capacity” to create a will. Most people gain legal capacity once they reach the legal age of 18, though people can also gain legal capacity by being lawfully married or a member of the U.S. armed forces.
Voluntary Creation & Signing. A will can only be valid if the person who supplied the contents and signed on the dotted line did so voluntarily. A situation in which a person was coerced or pushed into creating or signing a will renders that will invalid.
Testamentary Intent. Though it may sound obvious, an individual making a will must actually
intend for the document they sign to function as their last will and testament, understanding that the instructions outlined in the document are legally binding and must be seen through as they are written.
Testamentary Capacity. The creator of a will must be aware that they are creating a will and what it means to create a will — that the instructions they have included therein will be seen through in the event of their death. In other words, they must be “of sound mind” to the extent that they understand what they are doing when they create a will.
Wisconsin-specific Will Requirements
- In Wisconsin, a will must be written. While some states allow oral wills (under the strictest circumstances), the only type of valid will in Wisconsin is a written will.
- In Wisconsin, a will must be signed and dated in the presence of two disinterested witnesses. Other states may allow what’s called a “holographic” will, one in which witnesses are not required. In Wisconsin, both witnesses must be disinterested parties, meaning they are not named as beneficiaries in the will.
- In Wisconsin, your will must be “proven” after your death in order to be deemed valid by the court. This can happen in one of a few ways. One way is through a court hearing where one of your witnesses (or another trustworthy source if your witnesses cannot be located) attests to the validity of your will. A court hearing can be avoided through the creation of a self-proving affidavit when you create your will. This affidavit needs to be signed by a notary public and can be used to attest to the validity of your will in lieu of calling witnesses to a court hearing.
While it may seem like a simple document, a will requires certain formalities to be taken to ensure its validity. While it may be tempting to create your will online, an experienced estate planning attorney can help ensure you tick all the necessary boxes and leave no stone unturned. A will outlines several critically important topics: how your assets should be distributed, who will act as legal guardian for your minor children, and who you trust to execute your wishes. Don’t leave these important decisions to the courts; create your will and comprehensive estate plan today.
I’m Paul Margerie, an estate planning lawyer in Brookfield and Elm Grove proudly providing services to people just like you. I also specialize in topics such as probate, trusts, and real estate law. I know you have questions about estate planning and I’m here to answer them. Give me a call today to get started.
