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State Will Requirements

A will is a legal document that provides instructions for what an individual would like to have happen to their property upon death. A will is also a place where parents can name a guardian for any minor children or adult children with developmental disabilities. Each state has different rules about how to create a valid will, the chart below outlines various state rules.  There are different types of wills:

  1. Written: Most states require that:
    1. Your will be in writing;
    2. You be of “sound mind;”(“Sound mind” generally means that you have an understanding of what you are doing.)
    3. You sign the will; and
    4. It be witnessed by an “uninterested party.” Some states may require two witnesses, that the witnesses are present when you sign the will, or that the will be notarized. A state either requires a will to be notarized, doesn’t require a will to be notarized, or if you do notarize a will it will be self-proving. A self-proving will means that if it is notarized, the probate court will accept it as the true will of the person who has died.  An “uninterested party” generally means someone who is not getting anything in the will.
  2. Statutory: Some states (California, Maine, Michigan, New Mexico, and Wisconsin) have a statutory will form, which can be filled in with the details of your estate plan and your wishes. Will forms are free and you don’t have to hire an attorney. But, they can’t be customized, so they are better for simpler estates.
  3. Oral: Generally, oral wills are only allowed in very limited and unusual circumstances (e.g., statements made on one’s deathbed).

There are several do-it-yourself will options, if you have a relatively simple estate, or cannot afford an attorney. There are online services, books, and computer software that can cost anywhere between $35-$200. You may also want to consider hiring an estate planning attorney, especially if you have a complicated estate. When an attorney helps you create a will, you will typically be charged a flat fee or an hourly rate. How much it will cost depends on factors such as the size of your estate or how complicated your wishes are. There are legal aid organizations that provide free or low-cost legal services for people with low and moderate income levels. Visit http://TriageCancer.org/Resources/StateResources, for legal resources in your state.

Probate

When someone dies (the decedent), the estate must be probated. Probate is the process through which a court supervises the gathering and distribution of the decedent’s property. Each state has a slightly different probate process; however, they generally fall into two categories: Uniform Probate Code (UPC) and non-UPC.

The main benefit of the UPC is a transition from mandatory court proceedings for probate to less formal, paper-driven processes.

If someone has a will, the estate must first pay the decedent’s debts and funeral and estate administration expenses then any remaining property is distributed according to the terms of the individual’s will. Executor named in the will distributes property.  The executor must be approved by the probate court before the executor has authority to handle the affairs of the estate and property distribution.

Consequences for Not Having A Will

If someone dies without a will their property will be distributed according to the state’s intestacy statute.  The intestacy statute is a ranking system of family members who inherit from the decedent’s estate. Each state has a different set of rules with respect to intestacy. Once the estate has paid all of the decedent’s debts, funeral, and estate administration expenses, then the probate court follows the state’s intestacy statute to determine how the property should be distributed. In doing so, the court hopes at least to come close to what the average deceased person wants.

Intestacy laws vary greatly from state to state. Typically, there is a ranking system where the decedent’s surviving spouse and/or children have priority over any other surviving relatives.

State Requirements for Creating A Will

State Written/Oral/ Statutory Number of Witnesses Notarized UPC/Non-UPC Notes
Alabama Written 2 Self-Proving Non-UPC
Alaska Written 2 Self-Proving UPC
Arizona Written 2 Self-Proving UPC
Arkansas Written 2 Self-Proving Non-UPC
California Written/Statutory 2 Not required Non-UPC
Colorado Written 2 Self-Proving UPC
Connecticut Written 2 Self-Proving Non-UPC
Delaware Written 2 Self-Proving Non-UPC
District of Columbia Written 2 Not required Non-UPC
Florida Written 2 Self-Proving UPC
Georgia Written 2 Self-Proving Non-UPC
Hawaii Written 2 Self-Proving UPC
Idaho Written 2 Self-Proving UPC
Illinois Written 2 Self-Proving Non-UPC
Indiana Written/Oral (I.C. 29-1-5-4) 2 Not required Non-UPC
Iowa Written 2 Self-Proving Non-UPC
Kansas Written/Oral (K.S.A. 59-608) 2 Self-Proving Non-UPC
Kentucky Written 2 Self-Proving Non-UPC
Louisiana Written 2 Required in addition to witnesses Non-UPC Nuncupative testament by private act (CCP 2884) and Mystic testament (CCP 2885) must be proved by 3 witnesses
Maine Written/Statutory 2 Self-Proving UPC
Maryland Written 2 Not required Non-UPC
Massachusetts Written 2 Self-Proving Non-UPC
Michigan Written/Statutory 2 Self-Proving UPC
Minnesota Written 2 Self-Proving UPC
Mississippi Written/Oral 2 Self-Proving Non-UPC Oral will must be written within 6 months to be probated.
Missouri Written/Oral 2 Self-Proving Non-UPC
Montana Written 2 Self-Proving UPC
Nebraska Written 2 Self-Proving UPC
Nevada Written 2 Self-Proving Non-UPC
New Hampshire Written/Oral (only for soldiers; N.H. Rev. Stat. Ann. § 551:15) 2 Self-Proving Non-UPC
New Jersey Written 2 Self-Proving UPC
New Mexico Written/Statutory 2 Self-Proving UPC
New York Written/Oral (limited to military NY CLS EPTL § 3-2.2) 2 Self-Proving Non-UPC
North Carolina Written/Oral (limited N.C.G.S. § 31-3.4) 2 Self-Proving Non-UPC
North Dakota Written 2 Self-Proving UPC
Ohio Written/Oral (Ohio Rev. Code Ann. § 2107.60) 2 Not required UPC
Oklahoma Written/Oral (limited to military Okla. Stat. tit. 84 § 84-46) 2 Self-Proving Non-UPC
Oregon Written 2 Self-Proving Non-UPC
Pennsylvania Written 2 Self-proving Non-UPC
Rhode Island Written 2 Self-proving Non-UPC
South Carolina Written 2 Self-proving UPC
South Dakota Written 2 Self-proving UPC
Tennessee Written/Oral (Tenn. Code Ann. § 32-1-106) 2 Self-proving (for wills executed prior to July 1, 2016, see Tenn. Code. Ann. § 32-1-104(b)) Non-UPC
Texas Written/Oral (only if made before September 1, 2007) 2 Self-proving Non-UPC Has an informal probate process similar UPC states
Utah Written 2 Self-proving UPC
Vermont Written/Oral (Vt. Stat. Ann. tit. 14 § 1-6) 2 Not required Non-UPC
Virginia Written 2 Self-proving Non-UPC
Washington Written/Oral (limited to military. Wash. Rev. Code § 11 12-025) 2 Self-proving Non-UPC
West Virginia Written 2 Self-proving Non-UPC
Wisconsin Written/Statutory 2 Self-proving Non-UPC Has an informal probate process similar UPC states
Wyoming Written 2 Self-proving Non-UPC