Having examined the formalites required of wills, including the signature requirements for wills, we can now consider how a will is actually executed. There are a number of specific steps to executing wills. This article describes these steps.

Consider State Law

Wills are primarily governed by state law. This is often the state law in which the decedent will reside at the time he dies.

Given our mobile society, the decedent may relocate to another state before he dies. The person making the will should also consider the formalities for wills of other states which he may relocate to in the future.

The person making the will should also consider the formalities required by states in which he owns property. A will may have to be filed or lodged these other states. This extra probate process is referred to as ancillary probate. Ancillary probate is common when the decedent owned property, such as real estate, located in another state. It is usually done solely to clear title to real property located in a different state.

Luckily, most states have enacted laws to address situations in which a will satisfies the formalities of one state but not the formalities required by the state in which the decedent resided when he died. These states now recognize a will as being valid if it was executed with the formalities required by the state where the decedent was domiciled at the time the will was executed, as long as the law of that state was followed.

Gather the Witnesses and Execute the Will

Generally, wills must be witnessed to be valid. Most states also require the will be notarized. With these persons present, the estate planning lawyer will usually recite something like the following to the person making the will:

• Is this your will?
• Have you read it and do you understand it?
• Does it dispose of your property in accordance with your wishes?

The estate planning lawyer will ensure that the person making the will answers “yes,” in a voice that everyone can hear.

The estate planning attorney will then ask the person making the will whether he requests the two witnesses witness the will. Again, the person making the will should clearly provide an affirmative response.

The witnesses should stand or sit so they can see the person signing the will. The person should sign each page of the will and then the end of the will.

One of the witnesses should read aloud the attestation clause. This clause attests that the foregoing things were done. Each witness should sign and write their address on the will.

If allowed, the witnesses should execute self-proving affidavits. A self-proving affidavit is language typed at the end of the will that allows the witness to swear before a notary public that the will has been duly executed and is then signed by the decedent and the witness before the notary. While not technically a part of the will itself, this affidavit allows the witnesses to avoid having to testify in court to prove the formalities for the will were met.

The notary will then sign and attaches the required seal to the will.

Secure the Pages of the Will

A copy of the will should be made. Then the pages of the will (and the copy) should be securely fastened together. This may sound like a simple matter, but it can go a long way in convincing the court that the exact number of pages have been provided to the court. In other words, this prevents the beneficiaries from adding an extra page to the will after the decedent has executed the will.

Store the Will in a Safe Place

The estate planning attorney should tell the person making the will how it is to be stored. Some attorneys will store the original will document in their own safe for safekeeping. Other attorneys will suggest the person making the will store the original copy of the will in a safety deposit box with a local bank.

Once the person who made the will dies, any person in possession of the will (either the original or a copy) is obligated to file or lodge the will with the local probate court. If the only copy is in a safety deposit box with a bank, most states have a law that allows interested family members to access the safety deposit box to try to locate the will. The banks will usually request a death certificate, identification of the person who wants to inspect the contents, and bank employees will usually supervise the inspection process.

This is the process for preparing a last will and testament. Having covered this material, it should be noted that there is one type of will that need not follow the strict formalities set out in state law in order to be valid. These wills are referred to as holographic wills. Let’s take a look at holographic wills now.