Wills form a critical part of a comprehensive estate plan, ensuring that your money, real estate, and cherished possessions are distributed according to your exact wishes. However, if your will doesn’t fulfill all state-specific legal requirements, it will be treated as invalid. If this happens, your estate will be subject to intestacy laws, meaning state law, not you, decides who inherits your assets. Whether you reside in Iowa, Illinois, Kansas, or Missouri, consulting an experienced estate planning attorney ensures your wishes are appropriately documented and legally enforceable.
Who Can Legally Make a Will?
Across our practicing states, you generally must be at least 18 years old to create a legally binding will. More importantly, the person making the will, known as the testator, must be of “sound mind.” This means they fully understand the extent of their assets, know who their natural heirs are, and comprehend the legal effect of signing the document. Furthermore, the testator must not be subject to coercion or undue influence. Having an attorney draft the document provides independent verification that these vital conditions of legal capacity are met.
Are Oral or Digital Wills Valid?
Generally, state laws in the Midwest do not recognize oral, video, or purely digital wills. A valid will must be written. For example, Iowa requires all wills to be properly witnessed, regardless of whether they are handwritten or typed. To ensure your plan survives judicial scrutiny, formal, printed documents drafted by a legal professional are always the safest route.
Does the Will Have to Be Witnessed?
Yes. To be legally binding, a will must be signed in the presence of at least two competent witnesses who are at least 18 years old. Importantly, these witnesses should be “disinterested,” meaning they are not named as beneficiaries in the will. While having a beneficiary act as a witness might not automatically invalidate the entire document, it leaves the will highly vulnerable to legal challenges and allegations of undue influence that can tear families apart.
Execution and Signatures
The signature of the testator is the vital component that officially executes the will. If a will is not signed and dated by the testator in the physical presence of the two witnesses, it cannot be accepted by the probate court. If the testator is physically unable to sign the document, they can legally direct another person to sign it on their behalf, provided it is done in their presence and under their explicit direction.
Furthermore, while not strictly required to make a will valid, an essential best practice is to include a “self-proving affidavit.” By having a notary public sign and stamp the document alongside the testator and witnesses, the will becomes self-proving. This prevents the probate court from having to track down your original witnesses years later to testify that they saw you sign it, saving your family significant time and legal hassle.
Once your will is properly executed, witnessed, and notarized, safekeeping is the next critical step. In the Midwest, the probate court generally requires the original, wet-ink document, not a photocopy. If the original will cannot be located after your passing, the court may legally presume that you intentionally destroyed and revoked it. Therefore, it is essential to store your original will in a highly secure location, such as a fireproof home safe or a bank safe deposit box, and to clearly communicate this location to your designated executor.
Important Considerations Beyond the Basics
For parents, one of the most critical functions of a will is the ability to legally nominate a guardian for minor children. If you pass away without a will, the court will make this monumental decision for you, potentially selecting someone you would not have chosen. Nominating a guardian in your will gives you the ultimate peace of mind, ensuring your children are raised by the individuals you trust most.
Your will must name an executor (or personal representative) to manage your estate. This person is responsible for settling debts, managing assets, and guiding the estate through the probate process. Choosing the right executor is just as important as the document itself. You should appoint someone who is responsible, organized, and capable of handling significant administrative and legal tasks during a difficult time. If you appoint someone who is overwhelmed or ill-equipped, it can lead to unnecessary delays and family friction. We recommend discussing this responsibility with your chosen individual ahead of time to ensure they are willing and prepared to serve in this capacity.
Work With a Local Will Attorney
An experienced will attorney can help draft your foundational documents, align your beneficiary designations, and ensure you comply with all complex state legal requirements. Having your will professionally prepared minimizes the risk of future disputes and ensures your legacy is secure.
With decades of experience in estate planning and elder law, Pearson Bollman Law is proud to serve communities across the Midwest. Contact us today to schedule a consultation. We are ready to assist you at any of our offices in West Des Moines, Cedar Rapids, Dubuque, Bettendorf, and Okoboji (Milford), IA, as well as Overland Park, KS.