A will is a legal declaration of a person's (testator’s) intention or wish regarding the disposition of the testator’s property, the guardianship of the testator’s children, and the administration of the testator’s estate upon the testator’s death. It is said to be a means of transferring title to property.
Any writing or declaration by which a person intends to dispose of their property or estate upon their death is a will, and if done as required by law, is entitled to probate as a will. A will vests no present interest in the property it intends to distribute—it is only effective upon the death of the person making the will (the testator). And a testator can change or revoke their will during their lifetime.
A will may:
• direct how the testator's property should be disposed of upon the testator’s death;
• direct how not to dispose of the testator's property, such as by expressly disinheriting a child or other heir;
• revoke a prior will; and
• appoint an executor of the testator's estate, and a guardian for the testator's children.
Will Requirements for Admission to Probate
Laws vary from state to state but to take effect, a will generally must be admitted to probate. And before a will can be admitted to probate, it must meet certain requirements (sometimes called formalities and solemnities). A will submitted for probate generally must be (1) in writing, (2) signed by the testator or, if the will is an attested will, by another person on the testator's behalf, and (3) attested to by witnesses, unless it is a holographic will.
Laws generally require certain provisions and methods for signing (executing) a will to help prevent fraud in the transfer of the testator’s assets (disposition of property) and guardianship of the testator’s children.
For example, to prove a will was properly executed and ultimately obtain the probate of the will (recognition and legal effect), the court must receive evidence (sworn testimony) proving the will was made by the testator. To provide the court with this evidence, the testator may attach to the will an affidavit of sworn testimony from the testator and the witnesses or may include a self-proving clause in the will, with a jurat (statement by a notary public) showing the declarations were sworn to before a notary public.
These forms of sworn testimony make the will self-proved and eliminate the need to have live witnesses testify to prove the will was properly executed when submitting the will for probate. The self-proving affidavit or self-proving clause may be required to be executed (signed) at the same time the will is executed.
Laws regarding will requirements for admission to probate are usually located in a state’s statutes—often in the probate code or estates code.
Holographic Will
Some states have been willing to relax the strict requirements for executing a will that can be admitted to probate when the will is entirely in the testator’s handwriting—and this fact is proven to the satisfaction of the court—which is known as a holographic will.
A person offering a holographic will for probate (often one of the testator's heirs) will also be required to prove to the court that the testator was of sound mind and that the testator understood what the testator was doing (disposing of their property) when writing the holographic will.
As a matter of policy, states that allow a holographic will to be admitted to probate under certain conditions are attempting to give effect to the intentions of persons not able to complete a will with the required formalities—such as elderly persons living alone who do not have regular contact with family or friends.
Laws regarding the enforceability of holographic wills vary from state to state but in some states a will intended by the testator as holographic will be enforced even though it contains words not in the handwriting of the testator if the words not in the testator’s handwriting are not necessary to complete the will and do not affect its meaning.
For example, an acknowledgment of a notary public and the notary public's signature are surplusage not necessary to complete the will and do not affect its meaning. A holographic will is not required to be attested by subscribing (signing) witnesses.
In South Carolina, a will is a legal document that expresses a person's wishes regarding the distribution of their property and the care of any minor children upon their death. To be valid, a will must generally be in writing, signed by the testator, and witnessed by at least two individuals who are present at the same time and observe the testator signing the will or acknowledging the signature. South Carolina does recognize holographic wills, but only if they are entirely in the testator's handwriting and signed by the testator. However, holographic wills are not witnessed in the traditional sense, which can sometimes make them more challenging to prove in probate court. It is important to note that while a will can be changed or revoked at any time during the testator's life, it only becomes effective upon the testator's death and must be admitted to probate to be legally enforceable. The probate process includes proving the validity of the will, which may involve a self-proving affidavit—a sworn statement by the witnesses attesting to the validity of the will—to streamline the process and avoid the need for witness testimony in court.
