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A will is a document prepared by someone which states what they want to happen to their property when they die – how they want it distributed – identifying what property should go to which people. By preparing a legally valid will, a person can avoid having their probate estate pass on to others via state intestacy statutes. To ensure that a will is legally valid, the person preparing the will must follow various formalities and requirements. Most states have very rigid requirements as to what must be in the will and how a will must be created, although some states allow some flexibility and are willing to ignore harmless errors. The reason most states are so rigid in their requirements is to ensure that the person made the will freely and of their own volition, and that they truly intended to have their property distributed in the way discussed in the will.
When a person dies, their property is passed on to others – generally, their family and friends. Who the property goes to and how this is determined depends on a few things. All of a person’s property is known as their estate, and the process of distributing the property is known as estate administration. The first thing to look at for the purposes of estate administration is what property is part of the probate estate, versus property that is nonprobate property. This is necessary because estate administration only applies to the probate estate. Nonprobate property is not part of the estate administration because there are separate, and legally binding, arrangements for what happens to that property. For example, there may be a contract in place that dictates what happens to a certain piece of land, or jointly owned property may pass to someone else automatically, by law.
Once this distinction is made and you know what property is part of the probate estate, you have to determine how the probate estate is actually distributed. This depends on whether or not there was a valid legal will left by the deceased. If so, that will controls how the probate estate property is distributed. If there is no valid will, or if there is property that is not covered by the will, you have to look at certain laws of the state where the deceased lived. These laws, know as intestacy statutes, dictate how property should be distributed when there is no applicable will.
There are four general requirements for a will to be legally valid: