The last will and testament

For most of English history, the law, not the landowner, decided who inherited land. It passed to the eldest son, or back to the Crown. That changed in 1540, when Parliament passed the Statute of Wills under Henry VIII and, for the first time, let a landowner “devise” much of their property, that is, leave it to heirs they chose in a written will. The word “testament” once meant a gift of personal belongings and “will” meant a gift of land. Over time the two merged into the single phrase we still use.

In 1677 a second law, the Statute of Frauds, added the safeguards that still shape an American will. To stop people from inventing deathbed promises, it required a will to be in writing, signed by the person making it, and witnessed, originally by three people who watched the signing and then signed themselves. Those three requirements, writing, signature, and witnesses, are the spine of the formal, witnessed will in every state today.

The American colonies ran their probate courts on English law, and when they became states they kept it. Most passed a reception statute adopting English common law as it stood at independence, around 1776. That date matters. England rewrote its own law of wills in 1837, decades after the Revolution, so the United States never inherited the newer act. Each state instead wrote its own wills statute during the 1800s, borrowing freely from the English model, which is why most states later dropped the third witness and settled on two. One country, then fifty separate rulebooks. It is the reason the formalities still vary from state to state, and the reason Will.com reads your state’s rules before it writes a word.

An early American will looked much like a modern one. It had to be written down, signed by the person making it (the “testator”), and signed by witnesses who watched. The witnesses existed to answer one question years later: was this really the document this person meant as their last word? The self-proving affidavit, a short sworn statement the witnesses sign at the same time, came later as a convenience, so that nobody would have to track them down after a death.

Two older traditions sit beside the witnessed will. A holographic will is one written entirely in the maker’s own hand and signed, with no witnesses at all. It comes from Roman and later French and Spanish civil law, not from English common law, and about half the states accept some form of it. The handwriting itself is meant to be the proof.

Louisiana is the exception to almost everything here. Alone among the states, its law descends from French and Spanish civil law rather than English common law, and it even spells the handwritten will differently, an “olographic” testament. Will.com is available in all 50 states and the District of Columbia, Louisiana’s separate rules included. Older still is the nuncupative, or spoken, will, once allowed for soldiers in the field, sailors at sea, and the dying who had no time to find paper and witnesses. Almost every state has since done away with it.

For most of American history the fifty rulebooks drifted apart. In 1969 a group of legal scholars tried to pull them back together with the Uniform Probate Code, a model law that standardized how wills are signed and estates are settled. Roughly eighteen states adopted it in whole or in part. It standardized the self-proving affidavit and made settling an estate simpler and more uniform.

The newest chapter is digital. Nevada was the first state to allow an electronic will, back in 2001, though the technology to make it practical took another decade and a half. Indiana, Arizona, and Florida followed at the end of the 2010s, and in 2019 a uniform electronic-wills act gave other states a template, including the option to have witnesses watch over video. Remote online notarization, pioneered by Virginia in 2011 and adopted by most states during 2020, did the same for the notary.

This is a moving target, and exactly the kind of thing that is easy to get wrong from a generic template. Will.com tracks each state’s witness count, notarization rule, and electronic-signing status, and updates them as the law changes. You can see where your state stands on the state requirements page.