Checklist · Wills and Estates

Drafting a Will: A Practical Checklist

29 U.S.C. § 1055

Type
Checklist
Jurisdiction
National
Date
2024-02-24
Topic
Wills and Estates

A will fails for two reasons: it was drafted carelessly, or it was signed carelessly. This checklist walks the drafter through both halves of the job — from the intake interview that builds a capacity record capable of surviving a contest, through mapping the family tree and separating probate from non-probate assets, through the dispositive scheme (specific, general, demonstrative, and residuary gifts), anti-lapse and survivorship, fiduciary and guardian nominations, tax apportionment, and no-contest clauses — and ends where most wills actually die: the execution ceremony. It teaches the Uniform Probate Code framework and the majority approach, flags where strict-compliance states diverge, and follows a running example through the traps. Each phase carries its own check items, a short "why it matters" explanation, and the mistakes that recur in real files. The consolidated checklist near the end is the one to print and keep on the desk on signing day. Wills law is state law; use this to know what to ask, then confirm every formality against your own jurisdiction's statute before you put a client in a chair with a pen.

Drafting a Will: A Practical Checklist

Wills and Estates > Estate Planning | Published 24 February 2024 - Updated 29 June 2025 | UpLaw - uplaw.us

A will is the only legal document a lawyer drafts knowing that the one witness who could explain it will be unavailable to testify. Everything you do at the drafting table is an attempt to answer, in advance, a question that will be asked after your client is dead.

Keywords: will drafting, testamentary capacity, undue influence, execution ceremony, attesting witnesses, self-proving affidavit, Uniform Probate Code, anti-lapse, per stirpes, residuary estate, no-contest clause, executor, guardian nomination, tax apportionment, beneficiary designation

How to use this checklist

Wills are governed by state law. There is no federal law of wills, and there is no single nationwide rule on execution, capacity, anti-lapse, or contest clauses. The Uniform Probate Code (UPC) supplies the framework used here because a substantial minority of states have adopted it in whole or in substantial part, and because even non-UPC states are usefully described by reference to it. But the execution formalities in New York (N.Y. EPTL § 3-2.1) are not the formalities in Florida (Fla. Stat. § 732.502), and neither is the UPC. Before you conduct an execution ceremony, read your own state's statute. This checklist tells you what to ask and where the bodies are buried; your statute tells you what to do.

Our running example: Walter Kimball, 71, domiciled in Michigan (a UPC-based state, via the Estates and Protected Individuals Code). Two adult children from his first marriage — Nora and Theo. A second wife of nine years, Diane, and their 11-year-old daughter, Alice. A 401(k) worth about $600,000. A brokerage account he added Diane to as a joint tenant. And a beloved, mortgaged family cabin on Lake Wendel that Nora and Theo grew up in and that Diane has visited twice.

For the doctrinal foundation beneath every phase below, see Wills, Trusts, and Probate: A Comprehensive Estate Planning Guide.

Phase 1 — Intake: capacity, undue-influence red flags, and the file you will need if it is contested

  • [ ] Meet the client alone. Not with the adult child who called you, not with the new spouse, not with the caregiver who drove them.
  • [ ] Record who initiated the engagement, who scheduled it, who paid, and who was in the building.
  • [ ] Assess and contemporaneously document testamentary capacity against the four-element test: the testator is capable of knowing and understanding, in a general way, (1) the nature and extent of their property, (2) the natural objects of their bounty, (3) the disposition being made, and (4) how those relate to one another in an orderly plan. Restatement (Third) of Property: Wills and Other Donative Transfers § 8.1(b).
  • [ ] Ask open questions and write down the answers, not your conclusions. "Client identified her three children by name and correctly stated the approximate value of the house" beats "client appeared lucid."
  • [ ] Screen for insane delusion — a false belief adhered to against all evidence that actually affects the dispositive scheme. Restatement (Third) of Property § 8.1(c).
  • [ ] Score the undue influence risk: a confidential relationship plus suspicious circumstances (secrecy, haste, a sudden change favoring the influencer, isolation, the beneficiary procuring the will). Restatement (Third) of Property § 8.3.
  • [ ] If risk is elevated: obtain a contemporaneous physician or geriatric-psychiatry capacity evaluation dated the same week as execution.
  • [ ] Confirm the testator meets the statutory threshold — under the UPC, 18 or older and of sound mind. UPC § 2-501. (A handful of states set a lower age or add exceptions for emancipated or married minors; check yours.)
  • [ ] Check your own conflicts. Representing both spouses is a Model Rule 1.7 problem you must confront out loud; preparing an instrument that gives you or your relative a substantial gift is barred unless you are related to the client. ABA Model Rule of Professional Conduct 1.8(c).
  • [ ] Open a contest file from day one: engagement letter, intake notes, capacity notes, drafts with dates, and every email showing who talked to whom.

Why it matters, and the traps. Testamentary capacity is a famously low bar — generally lower than the capacity to make a contract or a deed — and a will is not invalidated merely because the testator was eccentric, ill, forgetful, old, or unkind. But capacity is measured at the moment of execution, and the person best able to describe that moment is dead. Your file is the testimony.

The real killer is usually not capacity; it is undue influence, because in many states a contestant who shows a confidential relationship plus suspicious circumstances shifts the burden to the proponent to prove the will was not procured by influence. (The precise trigger, and whether the effect is a presumption or merely an inference, varies by state — do not assume the formulation you learned in law school is the one your judge will use.) Some states go further and impose a statutory presumption: California, for instance, presumptively voids donative transfers to the drafter, a care custodian, or certain fiduciaries. Cal. Prob. Code § 21380.

Walter's second wife Diane found you, drove Walter to your office, sat in on the first meeting, and mentioned twice that "Nora hasn't called in years." That is not evidence of wrongdoing. It is evidence that a jury will be asked about it. Send Diane to the waiting room, note that you did, and note why.

Phase 2 — Map the family and the assets (and identify what passes OUTSIDE the will)

  • [ ] Draw the actual family tree: every marriage (and its end date), every child — biological, adopted, non-marital, step, and any child born after the will is signed.
  • [ ] Ask the uncomfortable questions directly: any children the current spouse does not know about? Any child conceived by assisted reproduction? Any adoption out of the family?
  • [ ] Identify anyone who would take in intestacy but is being disinherited — they are your contestants, and they are the ones a no-contest clause has to deter.
  • [ ] Build an asset schedule with titling and beneficiary designation for each item, not just value.
  • [ ] Tag each asset PROBATE or NON-PROBATE:
    • Non-probate: life insurance, 401(k)/403(b)/IRA, transfer-on-death and payable-on-death accounts, joint tenancy with right of survivorship, tenancy by the entirety, trust-held assets, TOD deeds.
    • Probate: assets titled in the decedent's sole name with no beneficiary designation, plus tenancy-in-common interests.
  • [ ] Note real property located in other states — it will generally require ancillary probate unless it is held in trust, held with survivorship rights, or passes by TOD deed.
  • [ ] Identify assets with special transfer rules: closely held business interests (check the operating or buy-sell agreement), firearms, digital assets and accounts, pets, and intellectual property.
  • [ ] Ask about a prenuptial or postnuptial agreement and read it before you draft a word.
  • [ ] Confirm the client's domicile and how long it has held. Domicile drives which state's law governs the personal property disposition, the elective share, and the estate tax.

Why it matters, and the traps. The single most common defect in an amateur estate plan is a will that carefully disposes of assets the will does not control. Walter's asset schedule looks like a $2.1 million estate. The will governs about $400,000 of it. The 401(k) goes to whoever is named on the plan form. The brokerage account passes to Diane by survivorship the instant Walter dies, regardless of what the will says. The cabin — held in Walter's sole name — is the one big asset the will actually reaches.

The prenup matters because it may already have resolved the elective share. Absent a valid waiver, a surviving spouse in a separate-property state can generally elect against the will and take a statutory share (under the UPC, a sliding percentage of the augmented estate that grows with the length of the marriage — UPC §§ 2-202 to 2-207 — and the augmented estate deliberately sweeps in non-probate transfers so you cannot dodge it with beneficiary designations). The size of the share, the assets it reaches, and the deadline to elect differ from state to state.

In the community-property states, the elective share generally does not exist in that form, because the surviving spouse already owns half of the community property outright — though the substitutes are not identical everywhere (Wisconsin, a marital-property state, has its own deferred marital property election, and several states offer optional community-property regimes). Know which regime you are in before you promise anyone anything. On the enforceability of the waiver itself, see Prenuptial Agreements: An Overview of Enforceability and Drafting and, for the drafting mechanics, Drafting a Prenuptial Agreement: A Practical Checklist.

Phase 3 — Coordinate with beneficiary designations, joint tenancy, and trusts

  • [ ] Pull the actual beneficiary designation forms — from the plan administrator, not from the client's memory.
  • [ ] Confirm the primary and contingent beneficiary on every retirement account and policy.
  • [ ] For a married client, remember that spousal consent is generally required to name a non-spouse beneficiary of an ERISA-governed qualified plan. 29 U.S.C. § 1055; IRC § 417.
  • [ ] Reconcile the designations with the will's plan. If they conflict, change the designation — do not try to override it in the will.
  • [ ] Review each joint account: is it a true survivorship gift, or a convenience account the client opened so a child could pay bills? Say so in writing.
  • [ ] If a revocable trust exists, confirm the will is a pour-over will and that the trust is actually funded.
  • [ ] Consider a transfer-on-death deed for real property, including out-of-state parcels. A majority of states now authorize them, many under the Uniform Real Property Transfer on Death Act; several do not. Confirm availability in the situs state.
  • [ ] Calendar a designation review after every marriage, divorce, birth, and death in the family.

Why it matters, and the traps. Walter divorced his first wife, Renata, twelve years ago. Renata is still the named beneficiary of his 401(k). Many clients — and some lawyers — assume the divorce fixed that.

Under UPC § 2-804, divorce revokes revocable dispositions to a former spouse, including many non-probate designations, and most states have some version of a revocation-on-divorce statute. But for an ERISA-governed plan, the Supreme Court has held that federal law preempts state revocation-on-divorce statutes and that the plan administrator must pay according to the plan documents. Egelhoff v. Egelhoff, 532 U.S. 141 (2001); Kennedy v. Plan Administrator for DuPont Savings & Investment Plan, 555 U.S. 285 (2009). A federal employee's life insurance is the same story. Hillman v. Maretta, 569 U.S. 483 (2013). (State revocation statutes survive Contracts Clause attack when applied retroactively to ordinary life policies — Sveen v. Melin, 138 S. Ct. 1815 (2018) — but that does not help you against ERISA preemption.)

Translation: on these facts Renata gets the $600,000, and no clause in Walter's will can stop her. The fix is a five-minute form, not a paragraph. Sending the client home with a stack of beneficiary-change forms is part of drafting the will — and following up until they come back signed is part of the engagement.

The mirror-image trap is the convenience account. If Walter added Nora to a bank account so she could pay the cabin's utilities, and the bank's signature card says "joint with right of survivorship," Nora may own that money at death — even though everyone in the family knows it was not meant as a gift. Some states let extrinsic evidence rebut the survivorship presumption; some do not. Fix the titling, or paper the intent.

Phase 4 — Draft the dispositive scheme: specific, general, demonstrative, and residuary gifts

  • [ ] Open with the essentials: full legal name and any aliases, domicile, revocation of all prior wills and codicils, family identification.
  • [ ] Classify each gift and know the consequence:
    • Specific devise — an identified thing ("my cabin at 14 Lake Wendel Road"). Fails by ademption if it is not owned at death.
    • General devise — a stated value from the estate generally ("$50,000 to my sister"). Satisfied from any assets.
    • Demonstrative devise — a stated value from a named source ("$50,000 from my brokerage account"). A hybrid; falls back to general if the source is gone.
    • Residuary devise — everything else. This is where the estate actually lives.
  • [ ] Draft the residuary clause with obsessive care, and make sure it disposes of 100% of the remainder.
  • [ ] Add a contingent ultimate taker ("if no descendant of mine survives me, then to ___") so the will cannot partially fail into intestacy.
  • [ ] Describe specific devises by legal description or account number plus a plain description, and add a fallback if the asset is sold ("or, if I do not own it at my death, the net sale proceeds then remaining, if any").
  • [ ] Decide exoneration: does a devisee of encumbered property take it subject to the debt, or does the estate pay off the lien? Say so explicitly.
  • [ ] Address ademption by satisfaction for lifetime gifts (UPC § 2-609) and, if you want an equalization scheme, spell out the accounting.
  • [ ] Use a tangible personal property memorandum — a separate signed writing the will references, disposing of tangible items and amendable without re-executing the will. UPC § 2-513. (Not every state authorizes these; where the statute does not, the older doctrine of incorporation by reference is the fallback. UPC § 2-510.)
  • [ ] Sanity-check the abatement order (under UPC § 3-902: intestate property, then the residue, then general devises, then specific devises) against your plan, and override it if the default would gut the person you care about most.

Why it matters, and the traps. Walter wants the cabin to go to Nora and Theo. The cabin carries an $80,000 mortgage. His draft says, boilerplate-style, "I direct my Executor to pay all my just debts and funeral expenses."

Under UPC § 2-607, a specific devise passes subject to any security interest, and a general directive to pay debts is not a direction to exonerate. Most non-UPC states have reached the same result by statute or decision, abolishing the old common-law doctrine of exoneration — but confirm yours. So Nora and Theo take the cabin and the mortgage. Perhaps that is what Walter wants. It is almost certainly not what he thinks he said. Ask, decide, and write the answer in one sentence: "The devise of the Lake Wendel property shall pass subject to any mortgage encumbering it at my death, and my Executor shall not exonerate that debt from my residuary estate." Or the opposite. Either is fine. Silence is not.

Second trap: Walter sells the cabin in 2027 and buys a condo. The specific devise adeems, and Nora and Theo get nothing — unless the will provides a substitute, or unless your state follows the UPC's intent-based nonademption rules (UPC § 2-606), which are considerably friendlier to the devisee than the traditional "identity theory" still applied in many jurisdictions. Do not rely on a statute to rescue a gift you could have drafted around.

Phase 5 — Lapse, anti-lapse, survivorship, and per stirpes vs per capita

  • [ ] For every beneficiary, ask: what happens if this person dies before my client? Write the answer into the will.
  • [ ] Understand your state's anti-lapse statute — who it covers and what it does. They vary widely in scope. Under UPC § 2-603, if a devisee who is a grandparent, a descendant of a grandparent, or a stepchild of the testator predeceases, the gift passes to that devisee's surviving descendants rather than lapsing. Other states limit the statute to descendants of the testator, or to kindred generally.
  • [ ] Know that under the UPC, mere words of survivorship do not opt out. Under UPC § 2-603(b)(3), "to my brother Curtis, if he survives me" is not, by itself, enough to defeat the anti-lapse substitution. (Many non-UPC states take the contrary view — which is exactly why you should never leave it to the default.) To opt out, say so: "...and if he does not survive me, this devise shall lapse and pass under my residuary clause."
  • [ ] Include an express survivorship period — commonly 30, 60, or 90 days — and know that the UPC imposes a 120-hour default even without one. UPC § 2-702. Coordinate it with the Uniform Simultaneous Death Act rules in force where you are.
  • [ ] Confirm what happens to a failed residuary share: the UPC abolishes the old "no residue of a residue" rule and redistributes among the surviving residuary takers. UPC § 2-604. Some states still apply the old rule and drop the failed share into intestacy.
  • [ ] Choose your representation scheme deliberately and define the term in the will:
    • Strict per stirpes — divide at the first generation below the testator, whether or not anyone at that level survives.
    • Per capita at each generation ("by representation" under the UPC) — divide at the first generation with a living member, then pool and re-divide the shares of the deceased at each level. UPC §§ 2-106, 2-709.
    • Per capita — equal shares to living takers only.
  • [ ] Consider whether adopted, non-marital, posthumously conceived, and stepchildren are included in "descendants" — and define the class in the instrument rather than inheriting a statutory definition you have not read.

Why it matters, and the traps. Suppose Walter leaves his residue "to my descendants, per stirpes." Nora dies before him leaving two children; Theo and Alice survive. Strict per stirpes: one-third to Theo, one-third to Alice, and Nora's one-third split between her two children (one-sixth each).

Now change one fact — all three of Walter's children predecease him, leaving four grandchildren (two from Nora, one from Theo, one from Alice). Strict per stirpes still divides at the children's level: Nora's two grandchildren take one-sixth each, Theo's child takes one-third, Alice's child takes one-third. Per capita at each generation pools the whole estate at the grandchildren's level and gives each of the four an equal quarter.

Same words in ordinary English. Wildly different results. Clients almost always mean the second one and almost always say the first. Ask them the grandchild question out loud, and put the definition in the will rather than leaving it to a default statute you may not even end up in.

Phase 6 — Name the fiduciaries: executor, trustee, guardian for minor children

  • [ ] Name a personal representative / executor and at least two successors, by name, in order.
  • [ ] Confirm the nominee is willing, is qualified to serve in the state of domicile (some states restrict out-of-state individual executors or require an in-state agent or a bond), and is not the family's most likely litigant.
  • [ ] Decide on bond: waive it, or require it, expressly.
  • [ ] Grant broad administrative powers so the executor is not running to court for permission (see Phase 7).
  • [ ] Nominate a guardian of the person for each minor child, plus a successor.
  • [ ] Nominate a conservator/guardian of the estate — or better, create a testamentary trust so a professional or family trustee manages the money rather than a court-supervised conservatorship that hands the child a lump sum at majority.
  • [ ] Set the trust's distribution ages and standards ("health, education, maintenance, and support"; principal at 25/30/35, or a single age).
  • [ ] Name a trustee and successors, and consider separating the trustee (money) from the guardian (child) if that is the right pairing.
  • [ ] Address compensation for each fiduciary, and consider a trust protector or a mechanism for removing a trustee without litigation.

Why it matters, and the traps. A guardian nomination in a will is exactly that — a nomination. The court appoints, applying the child's best interests, and it will honor a parental nomination in the ordinary case (see UPC Article V, on parental appointment of a guardian for a minor). But it is not self-executing, and — critically — it does not override the rights of a surviving parent. If Walter dies and Diane survives, Diane is Alice's parent and will have custody of Alice regardless of what Walter's will says. The nomination controls only if both parents are gone or the survivor is unfit. Walter should nominate anyway, along with a successor, because the alternative is a court choosing among relatives with no guidance at all.

The money is a separate question, and it is the one clients get wrong. Without a trust, Alice's inheritance goes to a conservatorship, is administered under court supervision with periodic accountings, and is typically handed to her outright at the age of majority. A testamentary trust — a few paragraphs in the same will — replaces that with a trustee, a standard, and staged distributions. If the family's wealth or complexity justifies it, consider a funded revocable trust instead, which also keeps the disposition out of probate; the trade-offs are laid out in The Estate Planning and Wealth Transfer Toolkit.

Phase 7 — Tax apportionment, debts, and administrative powers

  • [ ] Determine whether federal estate tax is even plausibly in play. The federal basic exclusion amount is in the eight figures per person, is inflation-indexed, and has changed repeatedly by legislation — do not quote a number from memory or from an old form file. Confirm the current figure. IRC § 2010(c).
  • [ ] Check for a state estate or inheritance tax. About a dozen states plus the District of Columbia impose one, several with thresholds far below the federal exclusion, and a handful impose an inheritance tax on the recipient rather than the estate. This is where the tax clause earns its keep.
  • [ ] If the client is married, consider portability of the deceased spouse's unused exclusion — which requires a timely filed federal estate tax return even when no tax is owed. IRC § 2010(c)(4)-(5). Consider also the marital deduction and a QTIP election. IRC § 2056.
  • [ ] Draft the tax apportionment clause on purpose. Decide: does the residue bear all death taxes, or is the tax apportioned to the assets that generated it (including non-probate assets)? See the Uniform Estate Tax Apportionment Act, incorporated into the UPC at Article III, Part 9A — and check whether your state has adopted it or has its own apportionment rule.
  • [ ] Draft the debts-and-expenses clause and coordinate it with exoneration (Phase 4) and abatement (UPC § 3-902).
  • [ ] Grant broad administrative powers: sell real and personal property without court order, continue a business, borrow, settle claims, make tax elections, distribute in kind, employ counsel and accountants, and deal with digital assets (most states have adopted the Revised Uniform Fiduciary Access to Digital Assets Act — but an express will provision granting access is typically what unlocks it).
  • [ ] Preserve the basis step-up analysis: assets included in the gross estate generally take a new basis at death. Do not gift away appreciated property during life without asking what it costs the heirs. IRC § 1014.
  • [ ] If asset-protection or creditor exposure is a live concern, address it structurally rather than in the will — see Domestic and Offshore Asset Protection Compared: A Wealth-Defense Field Guide.

Why it matters, and the traps. The tax clause is the most dangerous piece of boilerplate in a will, because it is invisible until it detonates. Walter's draft says: "I direct that all estate, inheritance, and death taxes be paid out of my residuary estate, without apportionment."

Walter's residue goes to Diane. His 401(k) — a non-probate asset, and after the fix in Phase 3, payable to Alice's trust — is the largest taxable item in the gross estate. Under that clause, Diane's residue pays the tax on money she never receives. In a state with a low estate-tax threshold, that can consume a large share of what Walter meant for his widow. The default rule in many states is equitable apportionment, which charges the tax to the assets that generated it; the boilerplate overrides the default. If Walter's intent is a clean split — and it is — the clause should apportion, or should exempt the retirement assets, or should charge the tax elsewhere. Read the clause out loud to the client with the actual numbers next to it.

Phase 8 — No-contest (in terrorem) clauses and their limits

  • [ ] Confirm your state enforces no-contest clauses at all, and on what terms. The prevailing approach enforces them except where the contestant had probable cause to bring the challenge. UPC § 2-517; UPC § 3-905.
  • [ ] Know the outliers: Florida refuses to give them effect entirely (Fla. Stat. § 732.517), and Indiana is the other state usually named alongside it. California enforces a clause only against a direct contest brought without probable cause (and, in limited circumstances, against a creditor's claim or a challenge to the transferor's property ownership). Cal. Prob. Code §§ 21310–21315.
  • [ ] Define the triggering conduct precisely: a direct contest, a challenge to a specific gift, a petition to remove the executor, a claim of an oral contract to make a will, an attack on a non-probate transfer?
  • [ ] Pair the clause with a meaningful gift to the person most likely to contest — a forfeiture clause with nothing to forfeit is a nullity.
  • [ ] Consider whether the same clause should appear in the revocable trust, so a beneficiary cannot contest the trust and keep the will bequest.
  • [ ] Carve out (or knowingly decline to carve out) good-faith requests for accountings, construction proceedings, and safe-harbor petitions.
  • [ ] If a contest is genuinely likely, treat the no-contest clause as one tool among many — not the plan.

Why it matters, and the traps. A no-contest clause is a deterrent, not a shield. Under the UPC's probable-cause exception, a contestant who loses but had reasonable grounds keeps the gift; only a contestant who sues without probable cause forfeits. That is a rational rule, and it means the clause does very little against a challenge that is even arguably meritorious — which is exactly the challenge you were worried about.

More to the point, the clause only bites if the potential contestant has something to lose. If Walter disinherits Nora entirely and adds a ferocious in terrorem clause, Nora forfeits zero dollars by suing. The clause is decorative. If instead Walter leaves Nora a $75,000 legacy she will surely lose if she litigates and loses, the clause has teeth: she must weigh a certain $75,000 against an uncertain lawsuit.

Better still: reduce the motive to sue. A clean capacity record (Phase 1), an explanation letter kept outside the will (a hostile explanation inside the will can itself become Exhibit A in a defamation or undue-influence fight), a funded revocable trust that keeps the disposition out of the public probate file, and — where the family situation warrants — a lifetime conversation. For what a contest actually looks like once it starts, see Administering an Estate: A Probate Checklist.

Phase 9 — The execution ceremony: witnesses, notary, self-proving affidavit

This is where wills die. Draft brilliantly and sign carelessly, and you have produced a very expensive piece of paper.

  • [ ] Read your state's execution statute the morning of the signing. The UPC baseline (§ 2-502(a)) requires: a writing; signed by the testator (or in the testator's name by another individual in the testator's conscious presence and by the testator's direction); and signed by at least two individuals, each of whom signed within a reasonable time after witnessing either the signing of the will or the testator's acknowledgment of the signature or of the will. Later UPC amendments allow notarization as an alternative to two witnesses — but most states have not adopted that option. Do not rely on it.
  • [ ] Use two disinterested witnesses — always, everywhere, even in states that do not require it. Under UPC § 2-505 an interested witness does not invalidate the will, but a number of non-UPC states retain purging statutes that void or reduce the interested witness's gift, and some create a presumption of undue influence (see Cal. Prob. Code § 6112).
  • [ ] Confirm the will is complete and final — no blanks, no "TBD," no unnumbered pages. Number every page ("Page 3 of 9").
  • [ ] Assemble everyone in one room, at one time, and keep them there until the last signature is dry.
  • [ ] Have the testator declare to the witnesses that the document is their will and that they want the witnesses to witness it (publication — required in New York, N.Y. EPTL § 3-2.1, among other states, and harmless everywhere else).
  • [ ] Have the testator sign first, in ink, in the presence of both witnesses. Sign at the end (New York requires the signature at the end of the instrument).
  • [ ] Have each witness sign in the presence of the testator and of each other, and print their names and addresses.
  • [ ] Have the testator and witnesses initial each page, if that is your practice.
  • [ ] Execute a self-proving affidavit before a notary, at the same sitting. UPC § 2-504.
  • [ ] Confirm the notary is not one of the two witnesses (unless your state expressly permits it) and is not a beneficiary.
  • [ ] Do not let anyone leave the room to "get the notary later."
  • [ ] Memorialize the ceremony: a signed attorney memo describing who was present, what was said, and what the testator was asked and answered.
  • [ ] Consider — carefully — whether to video-record the ceremony. It can be powerful evidence of capacity, and it can be a highlight reel of a bad day.
  • [ ] Execute the ancillary documents at the same sitting: durable power of attorney, health care proxy / advance directive, HIPAA authorization, and the tangible personal property memorandum.

Why it matters, and the traps. The self-proving affidavit (UPC § 2-504, and its analogue in nearly every state) is the highest-value ten minutes in the whole engagement. It lets the will be admitted to probate without locating and deposing the attesting witnesses years later — witnesses who by then have moved, forgotten, or died. In its absence, the executor must track down two people who signed a piece of paper a decade ago and ask them to swear to it. That is a real cost, and it is entirely avoidable.

Two more traps. First, the interested witness. Diane's sister is a legatee under Walter's will and is also, conveniently, standing in the office. Do not use her. Under the UPC she would not invalidate the will, but Michigan is not everywhere, and in a purging-statute state she would lose her gift — and in any state, a beneficiary-witness is a gift to a contestant's lawyer.

Second, the harmless error doctrine is not a plan. A growing minority of states — following UPC § 2-503 and its analogues (e.g., Cal. Prob. Code § 6110(c)(2); N.J.S.A. 3B:3-3) — will admit a defectively executed document if there is clear and convincing evidence the decedent intended it as their will. This has saved genuinely botched wills. But strict-compliance jurisdictions still exist and still refuse to bend, harmless error is a litigation posture rather than an outcome, and "we can probably cure it under 2-503" is not a sentence a competent drafter should ever have to say.

Similarly, holographic wills (unwitnessed, with material portions in the testator's handwriting — UPC § 2-502(b)) are recognized in roughly half the states and are the right answer almost never. And the electronic wills statutes now on the books in a modest but growing number of states, several following the Uniform Electronic Wills Act (2019), impose their own remote-witnessing and notarization requirements that are in practice more demanding, not looser, than the paper regime. Confirm before you improvise.

Phase 10 — Safekeeping, revocation, and periodic review

  • [ ] Deliver the executed original to the client (or, where permitted, deposit it with the probate court) and tell them exactly where to keep it. A safe-deposit box that no one can open without a court order is a bad answer.
  • [ ] Keep a conformed copy in your file, clearly marked "COPY," with the execution memo attached.
  • [ ] Tell the client, in writing, where the original is and who knows.
  • [ ] Explain revocation: a subsequent will or writing executed with the same formalities, or a revocatory act — burning, tearing, canceling, obliterating, or destroying — performed with intent to revoke. UPC § 2-507.
  • [ ] Warn the client not to write on the will. Interlineations, crossed-out names, and marginal notes do not amend a will; they create litigation, and in some states they can revoke all or part of it.
  • [ ] Explain that changes require a codicil executed with full formalities — or, far better and usually cheaper, a complete restatement.
  • [ ] Know the change-of-circumstance defaults, and remember they vary: divorce revokes provisions for the former spouse (UPC § 2-804); a killer forfeits (UPC § 2-803); a spouse married after the will may take an intestate share as an omitted spouse (UPC § 2-301); a child born or adopted after the will may take as an omitted child (UPC § 2-302). Note that a change of circumstances otherwise does not revoke a will. UPC § 2-508.
  • [ ] Calendar a review every 3–5 years, and immediately on: marriage, divorce, birth, death, a move to a new state, a significant liquidity event, or the sale of a specifically devised asset.
  • [ ] Re-review the beneficiary designations at every one of those triggers.

Why it matters, and the traps. A cross-state move is the most underrated will-killer in the practice. A will valid where executed is generally honored elsewhere, but the dispositive consequences can change dramatically: Walter's Michigan will, carried to Texas, lands in a community-property regime with different marital-property rules, a different spousal-protection landscape, and a homestead regime with real teeth. If your client moves, the will gets re-reviewed. Full stop.

The second trap is the "codicil to a codicil to a codicil." Three codicils later, no one — including you — can reconstruct the dispositive plan without a whiteboard. Restate.

Common mistakes to avoid

  1. Drafting the will and ignoring the beneficiary forms. The will governs a minority of a modern estate. The forms govern the rest.
  2. Boilerplate tax and debt clauses. "Pay all taxes and debts from the residue" is not a decision; it is the absence of one, and it routinely guts the residuary beneficiary the client cared about most.
  3. Assuming words of survivorship defeat anti-lapse. Under UPC § 2-603(b)(3), "if she survives me" is not enough. Say what happens if she does not.
  4. Using "per stirpes" without asking the grandchild question. Clients usually mean per capita at each generation and say per stirpes.
  5. Letting an interested person into the room. Or the drafting. Or the transportation.
  6. A no-contest clause with no carrot. A disinherited heir forfeits nothing by suing.
  7. An interested witness. Zero upside, real downside.
  8. Executing without a self-proving affidavit. Ten minutes now, a deposition hunt later.
  9. Leaving a specifically devised asset encumbered without addressing exoneration. UPC § 2-607 answers the question if you do not — and often not the way the client expects.
  10. No residuary clause, or a residuary clause that fails. Partial intestacy is a drafting failure with a statutory name.
  11. Forgetting non-traditional assets. Copyrights, patents, publicity rights, and closely held business interests each have their own transfer rules. See Passing Down Your IP: Copyright, Patents, Publicity Rights, and Estate Planning and, for the statutory termination rights that pass to statutory heirs by operation of law regardless of the will, Copyright Renewal and Termination of Transfer: A Practical Checklist.
  12. Assuming the UPC is the law where you are. It is a teaching framework and, in many states, the actual statute — but not in yours until you have checked.
  13. Never updating. The best-drafted will in the world describes a family that no longer exists.

The consolidated drafting and execution checklist

Intake and capacity

  • [ ] Client interviewed alone; contest file opened
  • [ ] Capacity documented against the four-element test (Restatement (Third) of Property § 8.1)
  • [ ] Undue-influence red flags scored; medical evaluation obtained if warranted
  • [ ] Conflicts cleared (Model Rules 1.7, 1.8(c))

Facts

  • [ ] Complete family tree, including every child and every prior marriage
  • [ ] Asset schedule with titling and beneficiary designation for each item
  • [ ] Probate vs. non-probate tagged; out-of-state real property flagged
  • [ ] Domicile confirmed; governing state's wills statute identified and read
  • [ ] Prenup / postnup obtained and read; elective-share exposure assessed

Coordination

  • [ ] Beneficiary designation forms pulled from the administrators
  • [ ] Ex-spouse designations corrected (do not rely on UPC § 2-804 against an ERISA plan)
  • [ ] Joint accounts characterized; convenience accounts fixed
  • [ ] Trust funded, if there is one; pour-over will in place

Dispositive scheme

  • [ ] Gifts classified: specific / general / demonstrative / residuary
  • [ ] Residuary clause disposes of 100%, with an ultimate contingent taker
  • [ ] Exoneration decided and stated (UPC § 2-607)
  • [ ] Ademption fallbacks drafted (UPC § 2-606)
  • [ ] Tangible personal property memorandum referenced (UPC § 2-513)
  • [ ] Anti-lapse addressed expressly for every gift (UPC § 2-603)
  • [ ] Survivorship period stated (UPC default: 120 hours, UPC § 2-702)
  • [ ] "Per stirpes" / "by representation" defined in the instrument

Fiduciaries

  • [ ] Executor + two successors; bond waived or required
  • [ ] Guardian of the person + successor nominated
  • [ ] Testamentary trust for minors, with trustee, standard, and distribution ages
  • [ ] Broad administrative powers, including digital assets (RUFADAA)

Tax

  • [ ] Federal and state estate/inheritance tax exposure assessed against current figures
  • [ ] Apportionment clause drafted on purpose, with the real numbers
  • [ ] Portability considered (IRC § 2010(c)); basis step-up preserved (IRC § 1014)

Protection

  • [ ] No-contest clause drafted to the state's rule (UPC §§ 2-517, 3-905) and paired with a real gift

Execution

  • [ ] State execution statute read that morning
  • [ ] Final, complete, paginated document
  • [ ] Testator + two disinterested witnesses + notary, all in one room
  • [ ] Publication; testator signs first at the end; witnesses sign in each other's and the testator's presence
  • [ ] Self-proving affidavit executed (UPC § 2-504)
  • [ ] Ancillary documents signed: POA, health care directive, HIPAA release
  • [ ] Attorney execution memo drafted and filed

After

  • [ ] Original delivered; location documented; conformed copy in file
  • [ ] Client warned: no writing on the will
  • [ ] Review calendared (3–5 years, plus on any life event)

Primary Authority

Wills are creatures of state law. The uniform acts below are the framework this checklist teaches; the operative rule in any given matter is the enacted statute of the governing state.

Uniform acts and model rules

  • Uniform Probate Code §§ 2-501 to 2-517 (capacity, execution formalities, harmless error, self-proved wills, witnesses, revocation, revival, incorporation by reference, tangible personal property lists, contracts concerning succession, penalty clauses)
  • UPC § 2-501 (who may make a will); § 2-502 (execution: writing, signature, two witnesses; holographic wills); § 2-503 (harmless error / dispensing power); § 2-504 (self-proving affidavit); § 2-505 (who may witness); § 2-507 (revocation by writing or by act); § 2-508 (no revocation by change of circumstances); § 2-510 (incorporation by reference); § 2-513 (separate writing identifying devise of tangible property); § 2-517 (penalty clause for contest)
  • UPC §§ 2-603, 2-604 (anti-lapse; failure of testamentary provision)
  • UPC §§ 2-606, 2-607, 2-609 (nonademption; nonexoneration of encumbered property; ademption by satisfaction)
  • UPC §§ 2-702, 2-709 (requirement of survival by 120 hours; representation)
  • UPC §§ 2-202 to 2-207 (elective share of the augmented estate); §§ 2-301, 2-302 (omitted spouse; omitted children); §§ 2-402 to 2-404 (homestead allowance, exempt property, family allowance)
  • UPC §§ 2-803, 2-804 (slayer rule; revocation by divorce of probate and non-probate transfers)
  • UPC § 3-902 (abatement); § 3-905 (penalty clause for contest — unenforceable where probable cause exists); Article III, Part 9A (estate tax apportionment)
  • UPC Article V (guardianship and protective proceedings, including parental appointment of a guardian)
  • Uniform Estate Tax Apportionment Act; Uniform Electronic Wills Act (2019); Revised Uniform Fiduciary Access to Digital Assets Act; Uniform Real Property Transfer on Death Act; Uniform Simultaneous Death Act
  • ABA Model Rules of Professional Conduct 1.7 (conflicts), 1.8(c) (gifts to the drafter)

Federal statutes

  • IRC § 1014 (basis of property acquired from a decedent)
  • IRC § 2010(c) (applicable exclusion amount; portability of the deceased spousal unused exclusion)
  • IRC § 2056 (marital deduction; QTIP elections)
  • IRC § 417 and 29 U.S.C. § 1055 (spousal consent requirements for qualified plan beneficiary designations)
  • ERISA § 514, 29 U.S.C. § 1144 (preemption of state laws relating to employee benefit plans)

Cases

Representative state statutes (illustrative — confirm your own)

  • N.Y. EPTL § 3-2.1 (execution formalities: signature at the end, publication, two attesting witnesses)
  • Fla. Stat. § 732.502 (execution); Fla. Stat. § 732.517 (penalty clauses in wills unenforceable)
  • Cal. Prob. Code § 6110 (execution; harmless error); § 6112 (interested witnesses); §§ 21310–21315 (no-contest clauses); § 21380 (presumptively voided transfers to drafters, care custodians, and certain fiduciaries)
  • N.J.S.A. 3B:3-3 (harmless error / writings intended as wills)
  • Michigan Estates and Protected Individuals Code (a substantially UPC-based enactment; the governing law for the running example)

Secondary Sources

  • Restatement (Third) of Property: Wills and Other Donative Transfers (esp. § 8.1, mental capacity and insane delusion; § 8.3, undue influence, duress, and fraud)
  • Restatement (Third) of Trusts
  • Bogert, The Law of Trusts and Trustees
  • Scott and Ascher on Trusts

Related UpLaw Resources

Related Guides & Articles

Related Checklists

Related Toolkits

This checklist is general legal information from UpLaw (uplaw.us), not legal advice, and does not create an attorney-client relationship. Wills, probate, and marital-property law are governed by state law and vary substantially; execution formalities in particular are unforgiving. Verify current requirements in your jurisdiction and consult qualified counsel before drafting or executing any testamentary instrument.