The Not-So-Simple, Simple Will

When people come to my office, one of the most common requests I hear is, “I just need a simple will.” But many times, after spending some time going over their personal circumstances and their specific needs, the “simple will” they thought they needed was not-so-simple after all.

But beyond creating a legal document that is custom tailored to someone’s specific needs, there is another important reason why creating a will should not be taken lightly:  Formalities.

Under Idaho law, there are several formalities that must followed for your will to be valid.  When these formalities are not followed, your will is tossed aside and your property is distributed as if you had no will at all, known as dying “intestate.” This means you have lost your say in where your property goes.

These formalities generally come in two forms.  First, your will must contain certain language within the document to be valid.  For example, language must be specific to establish the “sound mind” and capacity of the person making the will.  And certain formal language in the will is required when making certain provisions, such as disinheriting someone.

Second, the will must be executed (or signed) in a specific way. In fact, the way a will is executed is different than any other legal document because witnesses are required for testator’s signature.  My clients are often surprised when I refer to the signing meeting as a “ceremony” because of this requirement.

In my practice, I have seen many do-it-yourself wills.  These range from forms downloaded from the internet to handwritten notes. In most cases it was very clear what the testator wanted to do with his or her property upon their death, however because the formalities were not followed, their will was invalid. And in some cases, the results were contrary to the testator’s wishes.

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