Most people in Nevada understand that a valid will is necessary to dispose of a person’s property when that person dies. When asked what goes into a will, a large number of people will say “specific bequests” or “establishing a trust.” Very few Nevadans have any idea of the critical formalities that are necessary to create a valid will. The formal requisites of an enforceable will are set forth in Nevada’s statutes. If these requirements are not satisfied, the will is unenforceable and cannot be admitted into probate.
The most essential requirement for a valid will is that its maker be at least 18 years of age. The will must also be written and signed by the maker. Oral wills are not enforceable in Nevada. The signing of the will by the maker must be witnessed by at least two competent persons. The witnesses must sign the will in the presence of the testator.
In order to obviate the necessity of having witnesses appear in court to prove the execution of the will, the testator may sign an affidavit in the form and substance established by the legislature attesting to the competency of the testator and to the testator’s signing of the will. The will may make no devise (conveyance of property) to either witness.
In the digital age in which we live, wills may be drafted, signed and maintained as an “electronic record.” The electronic document must contain the signature of the testator and one of the three: an authentication characteristic of the testator; the electronic signature and electronic seal of a notary public; or the electronic signatures of two or more attesting witnesses.
As can be seen, the drafting and execution of a will has many details. The omission of any of the formal requisites may result in an order from the probate court declaring the will to be invalid. In order to ensure the formal validity of a will, the person making the will should retain an experienced estate planning attorney both to draft the substantive aspects of the will and to ensure that all statutory formalities are fulfilled.