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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

StateWritten/Oral/ StatutoryNumber of WitnessesNotarizedUPC/Non-UPCNotes
AlabamaWritten2Self-ProvingNon-UPC
AlaskaWritten2Self-ProvingUPC
ArizonaWritten2Self-ProvingUPC
ArkansasWritten2Self-ProvingNon-UPC
CaliforniaWritten/Statutory2Not requiredNon-UPC
ColoradoWritten2Self-ProvingUPC
ConnecticutWritten2Self-ProvingNon-UPC
DelawareWritten2Self-ProvingNon-UPC
District of ColumbiaWritten2Not requiredNon-UPC
FloridaWritten2Self-ProvingUPC
GeorgiaWritten2Self-ProvingNon-UPC
HawaiiWritten2Self-ProvingUPC
IdahoWritten2Self-ProvingUPC
IllinoisWritten2Self-ProvingNon-UPC
IndianaWritten/Oral (I.C. 29-1-5-4)2Not requiredNon-UPC
IowaWritten2Self-ProvingNon-UPC
KansasWritten/Oral (K.S.A. 59-608)2Self-ProvingNon-UPC
KentuckyWritten2Self-ProvingNon-UPC
LouisianaWritten2Required in addition to witnessesNon-UPCNuncupative testament by private act (CCP 2884) and Mystic testament (CCP 2885) must be proved by 3 witnesses
Maine Written/Statutory2Self-ProvingUPC
MarylandWritten2Not requiredNon-UPC
MassachusettsWritten2Self-ProvingNon-UPC
MichiganWritten/Statutory2Self-ProvingUPC
MinnesotaWritten2Self-ProvingUPC
MississippiWritten/Oral2Self-ProvingNon-UPCOral will must be written within 6 months to be probated.
MissouriWritten/Oral2Self-ProvingNon-UPC
MontanaWritten2Self-ProvingUPC
NebraskaWritten2Self-ProvingUPC
NevadaWritten2Self-ProvingNon-UPC
New HampshireWritten/Oral (only for soldiers; N.H. Rev. Stat. Ann. § 551:15)2Self-ProvingNon-UPC
New JerseyWritten2Self-ProvingUPC
New MexicoWritten/Statutory2Self-ProvingUPC
New YorkWritten/Oral (limited to military NY CLS EPTL § 3-2.2)2Self-ProvingNon-UPC
North CarolinaWritten/Oral (limited N.C.G.S. § 31-3.4)2Self-ProvingNon-UPC
North DakotaWritten2Self-ProvingUPC
OhioWritten/Oral (Ohio Rev. Code Ann. § 2107.60)2Not requiredUPC
OklahomaWritten/Oral (limited to military Okla. Stat. tit. 84 § 84-46)2Self-ProvingNon-UPC
OregonWritten2Self-ProvingNon-UPC
PennsylvaniaWritten2Self-provingNon-UPC
Rhode IslandWritten2Self-provingNon-UPC
South CarolinaWritten2Self-provingUPC
South DakotaWritten2Self-provingUPC
TennesseeWritten/Oral (Tenn. Code Ann. § 32-1-106)2Self-proving (for wills executed prior to July 1, 2016, see Tenn. Code. Ann. § 32-1-104(b))Non-UPC
TexasWritten/Oral (only if made before September 1, 2007)2Self-provingNon-UPCHas an informal probate process similar UPC states
UtahWritten2Self-provingUPC
VermontWritten/Oral (Vt. Stat. Ann. tit. 14 § 1-6)2Not requiredNon-UPC
VirginiaWritten2Self-provingNon-UPC
WashingtonWritten/Oral (limited to military. Wash. Rev. Code § 11 12-025)2Self-provingNon-UPC
West VirginiaWritten2Self-provingNon-UPC
WisconsinWritten/Statutory2Self-provingNon-UPCHas an informal probate process similar UPC states
WyomingWritten2Self-provingNon-UPC