The 7 elements of a valid will

Mom calls a family gathering. During it, she tells the family how she wants her property doled out when she dies. One son gets the land from the stream to the crooked coconut tree. A daughter gets the land from that tree to the end of the lot. And so on. Has mom guaranteed a smooth transition when she passes? Or has she planted seeds of discord that will bloom into family conflict after she’s no longer around to mediate?

It depends. If mom dies shortly after the meeting, then memories will be fresh, reducing the likelihood of disagreement. But if she died years later or she communicated less precisely than she intended, the meeting may have primed the family for a fight where each side sincerely believes they are right and, by extension, that other family members are trying to take away what mom wanted them to have. Talk about a recipe for hard feelings and lasting resentments.

What should have mom done instead? Draft a will that lists all of her stuff and then says in simple language who gets that stuff. Doing so eliminates family fights borne out of conflicting memories because mom’s intent is in black and white.

As a bonus, the will’s instructions and list of assets will speed up the probate process, meaning the heirs will get mom’s property sooner. That’s so for a couple reasons. One, as discussed, is that a will prevents many of the disputes that crop up in cases where a person dies intestate (i.e., without a will). The other reason is that a will provides a roadmap of mom’s stuff.

A roadmap may not sound important. But consider the alternative. If a person dies without providing a financial roadmap, then the family has some serious sleuthing to do. They need to figure out what land mom owns, which is the easy part. Then they need to identify mom’s bank accounts, retirement accounts, brokerage accounts, life-insurance policies, and so on. And they need to figure out if mom had any debts such as car loans, mortgages, and informal IOUs. Not easy. And no matter how much detective work you do, there’s always room for doubt about whether you found all of the assets.

Now let’s assume mom decided to eliminate family conflict and simplify the probate process by creating a will. What are the legal elements that her will needs to follow in order to be valid?

First, she must be an adult. Simple enough.

Second, she must be of sound mind when she signed the will. To be of sound mind, she needs to understand she is signing a will, know what property she owns, and know who her immediate relatives are. These elements normally come into play late in life, such as when mom secretly executes a new will giving all of her land to a caregiver. In this case, you can challenge the new will by arguing that mom was no longer of sound mind.

Third, she must have intended to transfer property. The key here is that the will contain language showing that mom intended the will to be her final word on where her property will go after she dies. This is no time to be wishy washy.

Fourth, the will must be in writing (except for rare circumstances).

Fifth, the will must be properly signed. Under Commonwealth law, that means your mom would need to either sign the will herself or direct someone else to sign the will for her. That person would then need to sign the will in front of your mom.

Finally, the will must be properly witnessed by at least two adults who are competent to testify in court and understand what they are witnessing. Ideally, the witnesses will not have any interest in the will (i.e., they won’t get anything from the will). If they do, then parts of the will might be void and the whole will open to challenge.

To simplify proving that a will was properly witnessed, many wills include what is known as a self-proving affidavit where the witnesses’ signatures are notarized. This affidavit can eliminate the need for the witnesses to go to court to testify about the will’s validity. That, in turn, can speed up the probate process, especially in cases where a witness no longer lives in the Commonwealth or is routinely absent.

To recap, creating a will reduces the potential for family conflict and is much easier for you to do now rather than forcing your loved ones to figure it out after you have passed away. So, don’t procrastinate. Talk to a qualified attorney about making a will. Your family will appreciate it later.