What does it mean to “execute” a will?

The word “execute” doesn’t make one immediately think of estate planning…or anything all that pleasant, actually.

Let’s unpack that word and talk about what executing a will and other estate planning documents looks like.

Let’s Start With a Definition

The Merriam-Webster definition that applies here is “to perform what is required to give validity to (something)”.  This is actually a very helpful and accurate way of understanding what it means to execute a will.  There are certain requirements that must be performed in order for the will to be valid.

If you read my post about per stirpes/per capita you know that everyday words can have a different legal meaning.  Black’s Law Dictionary explains that one meaning of execution is to, “make; as to execute a deed, which includes signing, sealing, and delivery”.  The signing, sealing, and delivery part is what is helpful here. 

We Have Execution Requirements, Why?

In the more distant past a person who wanted to execute a will had to sign it, usually in front of witnesses, and apply their seal.  Think of movies or shows where you’ve seen someone melt wax onto paper and then apply a rubber seal.  Or think of a time in your life when you had to get something notarized and the notary used a raised seal stamp.  Same concept.

The idea behind applying your seal is that it acts as a unique identifier to prove a document’s authenticity.  Meaning, the seal was a way for a person reading the document to be sure the document was real and not a forgery.  If you think about it, it makes sense.  None of the more sophisticated methods we use today to verify someone is who they claim to be were available at the time.

Our modern will execution requirements still generally track with those that have been used for hundreds of years.  Because courts of today still need a way to check that the will in front of them was actually written by the person who signed it (the testator), and that the testator wasn’t forced or coerced into signing it.

So What Are the Will Execution Requirements?

Every state has a law that explains what must be done in order to make a valid will.  Ohio’s law can be found here and explains that all wills:

            Must be in writing

            Signed at the end by the testator (called subscription)

            Signed or acknowledged before two witnesses

Let’s dig in a little more.

In Ohio all wills must be written down.  This means typed or handwritten on paper, so no oral wills.  The testator must write everything down that they want in their will and then sign it at the very end or the very bottom.  Meaning, no other substantive provisions can come after the signature. 

For example, if someone handwrote a will and realized once they completed it that they didn’t explain who should get their house after they die, they can’t put that information down on the paper anywhere below their signature.  It is possible that anything written after the signature will be completely disregarded by the probate court. 

The signature requirement seems straightforward, but it can raise some questions.  For example, what if the testator can’t write anymore, how do they sign?  Ohio law allows the testator to have someone sign for them.  The person who signs has to be in the testator’s “conscious presence” (we’ll talk more about that next) and has to sign at the testator’s direction.  State laws vary on these points though, so it’s important to have an attorney guide the execution process.

You might have noticed that the will must be signed OR acknowledged before two witnesses.  In Ohio this means the witnesses do not actually have to see the testator sign the will.  It is enough for the testator to acknowledge their signature in front of the witnesses.  But here again state laws vary.

Finally, there is the witness requirement.  Makes sense, right?  We want two people to see the testator sign the will.  The idea here is that having two people watch lessens the chance the testator was forced into making the will.  Ohio law requires the witnesses to be in the testator’s “conscious presence”.  What does that mean?

Conscious presence means the person writing the will must be able to sense the presence of the witnesses – meaning the testator has to see or hear the witnesses.  It’s important to note that Ohio specifically excludes hearing and seeing through electronic communications – so for now at least will executions have to be done in person and not over video or teleconference.  So, thinking back to the signature requirement if the testator can’t personally sign that we talked about before, that means the person who signs for the testator has to be in the testator’s physical presence.

Bear in mind, it can’t be any two witnesses.  A separate post will address this topic.  For now just understand that anyone who stands to gain from the will is not a good person to pick to witness the signing of that will.

Do Any Other Estate Planning Documents Require These?

Yes, just about every estate planning document requires some formality in order to be valid.  For example, Financial and Healthcare Powers of Attorney generally need to be signed and either witnessed by two witnesses or by a notary.  And as with a will there are limits on who may serve as a witness. 

Are There Any Exceptions?

It’s law, so yes, of course there’s exceptions.

Ohio law prohibits oral wills generally; not all states go this way.  But in Ohio there is one exception to his prohibition and that is for oral wills made in last sickness.  Meaning, wills one makes on their deathbed.  There are additional requirements to make such a will valid that we won’t get into here.  Just know that the spoken words do have to be written down in order for the oral will to have any hope of holding up.

And while Ohio law does allow handwritten wills, it does not allow holographic wills.  It is easy to confuse these; people tend to assume that all handwritten wills are holographic.  That is not true.  What distinguishes them is that holographic wills are unattested, meaning, they are handwritten wills that are NOT witnessed.  Some states do allow holographic wills.

You may have heard in recent news that Aretha Franklin’s will was a holographic will.  But hers is not the most famous.

The most famous holographic will that is taught in just about every law school is that of Cecil George Harris, a Canadian farmer who died in a tragic farming accident in 1948.  Harris was meant to be plowing a field until the evening hours.  When he didn’t return at the expected time his wife went to look for him.  Harris’s wife found him badly injured in the field.  Harris managed to use a pocket knife to scratch, “In case I die in this mess I leave all to the wife” and his signature in the tractor fender while pinned for around 10 hours.  He survived the trip to the hospital but died the next day.

The Takeaway

There are certain formal requirements that must be met in order for a will to be valid.  This is as much for the benefit of the probate court as it is for all of us.  The requirements vary among jurisdictions, so it’s best to hire a lawyer to help you through the process, especially if you regularly conduct business or live part of the year in more than one state.