Despite popular images to the contrary, forming a will is much more than simply making your desires known. To prevent fraud and to ensure that the testator’s wishes are accurately carried out, courts generally require that certain formalities be followed when executing a will for it to be considered valid.
While many states, including Arkansas, recognize the validity of holographic wills, as I discussed in a previous post, such wills are generally undesirable and best saved for the most extreme of circumstances. In this blog post, I will discuss what formalities are required in properly executing a will.
Witnesses Necessary for Executing a Will
Formalities for executing a will generally do not apply to holographic wills, which require only that the entirety of the will be in the testator’s handwriting, that the will be signed, and that the will clearly identifies itself as the testator’s last will and testatement. For attested wills—which are much more desirable—certain formalities must be followed when executing the will.
An attested will is a will that the testator signs in the presence of two independent witnesses—meaning that the witnesses are not named in the will—and a notary. Concerns over fraud and coercion disallow a beneficiary of a will from serving as a witness, except where the witness does not inherit anything beyond what he or she would have under the intestacy statute.
When these witnesses sign the will, they are testifying that they have witnessed the testator sign it and that there did not appear to them to be an impairment to the testator’s ability to execute a will—such as coercion, mental defect, etc.
When executing a will, it is also important to include a self-proving affidavit, which is a document signed by the two witnesses, under penalty of perjury, that they observed the testator sign the will and heard the testator say that it was his or her will. A self-proving affidavit allows the probate court to accept the will as that of the testator without having to track down the witnesses to testify.
Other Parties Associated with a Will
There are three fiduciary capacities associated with a will:
- Executor: the person who administers the will.
- Trustee: the person acting as trustee for any trust created under the will.
- Guardian: the person the will names as a guardian for any minor or incapacitated children.
If the will does not specify that a fiduciary can serve without a bond, the fiduciaries will have to file a bond with the probate court. A bond provides protection against financial loss for a fiduciary’s failure to properly follow the terms of the will.
Executing a will in Arkansas is not a complex affair, but it must be done properly to ensure that a court will hold it to be valid. These simple formalities are required to ensure that the will accurately reflects the wishes of the testator, as he or she is no longer available to testify on the matter.