Making a Will


In order make a valid will, it must meet certain formal requirements. In particular, a will must generally: (1) be in writing, (2) signed by the testator, (3) witnessed by 2 or 3 witnesses, and (4) some states require an attestation clause in the will. This type of will is a known as a written formalized will, which accounts for the vast majority of all wills (probably around 99% of all wills). In contrast, other less common types of wills include oral wills and holographic wills, which we will not discuss in this article.

It’s important to understand the elements in making a will. Let’s discuss each of these elements in a little more detail.

Next, we’ll take a look at the writing requirement.

In Writing

The first requirement for a written will is, naturally, that it must be in writing. (Certain states allow oral wills. However, oral wills usually must meet very stringent and particular requirements to be valid.)

The traditional modern method to place the will in writing is to write the will on a word processor and print out the will after completing it. Lawyers that assist testators in writing a will usually use some type of software with standardized clauses, and they add, delete, and edit the will to meet the needs of the testator. Then, they print out the will and have the testator and witnesses sign the will (which we’ll discuss later in this article).

However, the element of placing the will in writing simply means that the intent of testator must be written down on something. So, technically you could write your will on a napkin with a magic marker. There was even one obscure case where the testator wrote his intentions inside the shell of a coconut. But, it is most advisable to follow the traditional method of writing a will. And as we’ll see, even if you write your will on a napkin, you must meet the other formal requirements for the will to be valid.

Next, we’ll go over the second requirement to create a valid will.

Signed by Testator

The second requirement to make a valid will is to have the testator sign the will. This happens just like it sounds. After the will has been reviewed, created on a word processor, and printed out, the testator must hand-sign the will.

The signature can be anything (even just a mark) as long as the signature was intended to be the signature of the testator (but would still have to be proven in probate court). Some states also require the signature to be at the very end of the will (this is also the best practice, even if it is not required).

In addition, there are situations where someone else can sign for the testator. For example, if the testator is near death and does not have the physical capacity to sign his or her own will, a legal guardian can physically sign for the testator as long as done so in the testator’s presence. However, remember that the testator must still have the mental capacity to understand what he or she is signing. There are other nuances that come up with signatures, but this covers the basics.

Next, we’ll go over the third requirement to create a valid written will.

Witnessed by 2 or 3 Witnesses

The third requirement to create a valid written will is to have the will witnessed by 2 or 3 witnesses. In particular, most states require at least 2 competent witnesses to witness and sign the will.

Competent means that the witnesses must understand that the testator is signing a will (not some other document like a letter, contract, etc). To witness simply means that the witnesses watch the testator sign the will. The witnesses do not have to know the contents of the will, but just that the document is a will. This is legally known as attesting to the will. Witnesses can also usually be of any age, so minors may be witnesses.

Some states require the witnesses be disinterested witnesses. This means that the witnesses cannot take anything under the will. If the witnesses do take under the will, the will is still valid, but the witnesses would likely only receive whatever they would have received if the testator died intestate (i.e. without a will).

Next, let’s go over a fourth requirement mandated by some states – the attestation clause.

Attestation Clause

Some states require that the will has an attestation clause. But many states do not require an attestation clause, so check with your local state laws.

An attestation clause is simply a clause written into the will that says 2 or more witnesses attested to (i.e. witnessed) the testator signing the will. An attestation clause is basically one more way to validate the attestation of the witnesses.

As we previously mentioned under element (3), witnesses have to attest to the will. However, an attestation clause in the will makes it even more certain that the witnesses did actually attest to the will. The attestation clause is an extra step that shows attestation has really occurred. An attestation clause is also a big help for probate judges – they simply have to see if there was an attestation clause with the witnesses’ signatures, and attestation is satisfied.

Next, let’s go over some additional considerations to keep in mind.

Additional Considerations

There are additional considerations to keep in mind when creating a valid written will – other than basic requirements already mentioned.

First, there is no requirement for a date to be on a will, but every will should have a date. Without a date, witnesses would actually have to testify in court as to when the will was executed (i.e. created).

Second, sometimes a probate judge will dispense with or find that the will substantially complied with the formal requirements. Dispensing and substantial compliance are fancy words used when a judge finds that a will is valid, even if all the formal requirements have not been completely met. These situations are very fact specific and are based on each particular state’s case law. So, you don’t want a judge to have to rely on these legal methods for your will, because it is often very difficult to know what may be the end result.

Third, a will is not recorded or filed anywhere like with the deed to a house. Instead, it is best to place the original will in a safe location (like a safety deposit box at your bank) and make a few copies to place in another location for safe keeping. Also, make sure that the executor of your deed knows where the original and copies of your will are.

Finally, let’s conclude this article with a brief overview of a few key points.


In this article, we discussed the three main requirements to create a valid written will, including that the will must (1) be in writing, (2) signed by the testator, and (3) witnessed by 2 or 3 witnesses. Additionally, some states require an attestation clause in the will. The will we have discussed in this article is a written formalized will which accounts for the vast majority of all wills (as opposed to other less common types of wills such as oral wills or holographic wills).

You should now have a much better idea about how to create a valid formalized written will. You should also keep in mind that it’s generally best to have an attorney draft your will to meet your state’s particular will requirements.

Finally, keep in mind that wills may not always be the best way to devise (i.e. transfer) property. In fact, many times its better to transfer property through will substitutes such as trusts. To learn more about will substitutes and trusts take a look at the related information below.

© 2009-2010 ThinkingLegal, LLC. All rights reserved.