Validity of Wills

by | Aug 9, 2023

The term “testator” refers to someone who has created a Will. In the state of Colorado, there are specific rules to ensure a Will is valid and properly executed. 

A Last Will and Testament

A Last Will and Testament represents the most common type of will. To have validity, a will must be (1) in writing (typed or handwritten); (2) signed by the testator; and (3) either signed by two individuals who witnessed the testator sign the will or signed by a notary. 

A Last Will and Testament is a very important part of an estate plan – while it does not avoid probate by itself, it does act as an instruction sheet for the probate process. In addition, if you have minor children, your will has a guardianship provision that names who you would want to be named as guardian and raise your children. Most wills also appoint a personal representative for the estate.

Pour-Over Will

A Pour-Over Will is included in an estate plan for someone who has a Trust. To be valid, a Pour-Over Will must meet the same requirements as a Last Will and Testament. 

Having a Trust ensures you avoid probate and can include many other benefits, so long as the Trust is properly funded. However, for example, if a property is not owned by the Trust when upon death, that property would get pulled into probate. A Pour-Over Will tells the probate court to transfer the property into the name of your Trust; in other words, it acts as a safety net to catch anything headed to probate, and then “pours” the property into the Trust.

Holographic Will

A Holographic Will is better known as a completely handwritten will – yes, even if it is handwritten on a napkin. A Holographic Will does not need to meet the requirements of a Last Will and Testament. Instead, to have validity, material portions and the signature must be in the testator’s handwriting, and no witness or notary are required. 

A Holographic Will is better than having no will; however, it can cause some issues. Family members can argue lack of testamentary capacity or undue influence due to the lack of witnesses, loved ones could be omitted, and it will likely not cover the disposition of your entire estate. These issues can lead to a difficult probate process, while effective estate planning can likely avoid these problems.

What Type of Will Do I Need?

It is important to meet with an Estate Planning Attorney to learn more about the validity of different types of wills and other estate planning documents you need to ensure your estate avoids probate and passes seamlessly to your loved ones. Schedule a free initial consultation with one of our experienced estate planning attorneys today!