Quick answer

A will is an act by which a person is permitted to control to a certain degree the disposition of their estate, to take effect after their death, and because it speaks when the maker can no longer explain it, the law requires strict formalities to prevent fraud. Two kinds of wills are recognized, each with its own requirements. A notarial (or ordinary/attested) will must: be in writing and in a language or dialect known to the testator; be subscribed (signed) at the end by the testator or by another person in their presence and by their express direction; be attested and subscribed by at least three credible witnesses in the presence of the testator and of one another; have the testator (or the person signing for them) and the witnesses sign each and every page, except the last, on the left margin; have the pages numbered correlatively; and contain an attestation clause stating the required matters, and be acknowledged before a notary public. A holographic will, by contrast, is much simpler: it must be entirely written, dated, and signed by the hand of the testator themselves; no witnesses or notarization are required, but the whole document must be in the testator's own handwriting. As to capacity, the testator must be at least eighteen years of age and of sound mind at the time of making the will (sound mind meaning they know the nature of the estate, the proper objects of their bounty, and the character of the testamentary act). Crucially, a will produces no effect until it has been probated, that is, allowed by the court in a proceeding that proves its due execution and the testator's capacity; no will passes property unless probated. So a valid will must meet the strict formalities for its kind, notarial or holographic, be made by a capacitated testator, and be probated to take effect.

Two Kinds of Wills

A will controls the disposition of one's estate after death. Because it speaks when the maker cannot, the law requires strict formalities. There are two kinds.

Notarial vs. Holographic

Capacity and Probate

The testator must be at least 18 and of sound mind when making the will. Crucially, a will produces no effect until probated — allowed by a court proving its due execution and the testator's capacity. No will passes property unless probated.

Practical Takeaways

Frequently Asked Questions

What are the requirements of a notarial will? It must be in writing in a language known to the testator, signed at the end by the testator, attested and subscribed by at least three credible witnesses signing each page and the margins, contain an attestation clause, and be acknowledged before a notary public.

What are the requirements of a holographic will? It must be entirely written, dated, and signed by the hand of the testator themselves. No witnesses or notarization are required, but the whole document must be in the testator's own handwriting.

Who can make a valid will? A person at least eighteen years of age and of sound mind at the time of making the will, meaning they know the nature of their estate, the proper objects of their bounty, and the character of the testamentary act.

Does a will take effect automatically upon death? No. A will produces no effect until it has been probated, that is, allowed by the court in a proceeding proving its due execution and the testator's capacity. No will passes property unless probated.

This commentary is for general informational purposes only and does not constitute legal advice. For guidance specific to your situation, please consult a licensed attorney.

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