How state law shapes your will — the variations that matter

Wills are governed by state law, not federal law. There's no national wills code. Every state has its own statutes covering signing formalities, witness requirements, what counts as a valid amendment, what spouse rights override your wishes, and what shortcuts exist for small estates.

Most of these variations don't matter to most people. But the ones that do, matter enormously.

Witness requirements

Two witnesses is standard in 48 states. Two outliers:

• Vermont: three witnesses required.
• Louisiana: civil-law system (a holdover from French law). The rules are completely different. If you live in Louisiana, work with a Louisiana attorney.

In every state, witnesses must be adults of sound mind. In every state, witnesses should not be beneficiaries — under "interested witness" rules, a beneficiary's gift may be voided if they witnessed.

Holographic wills

A holographic will is one written entirely in your own handwriting and signed by you, without witnesses. Some states recognize them; many don't.

Recognize holographic wills: AK, AZ, AR, CA, CO, KY, ME, MS, MT, NV, NJ, NC, ND, OK, PA, SD, TN, TX, UT, VA, WV, WY (plus Louisiana under specific rules).

Don't recognize: AL, CT, DE, FL, GA, HI, ID, IL, IN, IA, KS, MD, MA, MI, MN, MO, NE, NH, NM, NY (except for active military), OH, OR, RI, SC, VT, WA, WI, plus DC.

Even where they're recognized, holographic wills invite probate fights — handwriting analysis, claims of forgery, claims of incapacity. A typed, witnessed will is always safer.

Self-proving affidavits

A self-proving affidavit is a notarized statement attached to the will, signed by the testator and witnesses under oath, that they observed everything correctly. With one, the witnesses don't have to be tracked down at probate.

Most states allow self-proving affidavits. A few quirks:

• Some require very specific language (states publish a model affidavit).
• A few states (notably DC and Maryland) don't recognize the affidavit until just-recently.
• Some require the affidavit to be on the same page as the signature; others allow it on a separate page.

When in doubt, use the state-specific model affidavit. Trustwise's templates do.

Elective share — what your spouse can claim

Almost every state has an "elective share" or "statutory share" rule that lets a surviving spouse claim a percentage of the estate regardless of what the will says.

The percentage varies — typically one-third (older statutes) or one-half (more recent reform). Some states scale the share by length of marriage; others apply a flat percentage.

Why this matters: even with a will leaving everything to your kids, your surviving spouse can elect to take their statutory share against the will. Doesn't matter what you wrote.

A pre-nuptial agreement that explicitly waives elective-share rights overrides the statutory default. So does a post-nuptial agreement. Without either, the elective share is a hard floor.

For first marriages, elective share usually doesn't matter — most people leave most assets to their spouse anyway. For second marriages with children from prior relationships, elective share is a real planning constraint.

Community property states

Nine states (plus Wisconsin's quasi-community-property rules):

AZ, CA, ID, LA, NV, NM, TX, WA, WI

In community property states, anything earned during the marriage is jointly owned 50/50 by the spouses, regardless of titling. At death, the surviving spouse keeps half automatically; the deceased's will controls the other half.

This affects what you can leave to whom. If you live in California for 30 years and accumulate $2M during the marriage, you can only direct $1M of it via your will — the other $1M is your spouse's automatically.

Pre-marital assets and inheritances stay separate property and pass entirely by your will, but you have to track this carefully — commingled funds become community property by default.

Small-estate procedures

Almost every state has a "small estate affidavit" or summary probate procedure for estates below a threshold. The threshold varies dramatically:

• CA: $184,500 (2026, indexed)
• TX: $75,000 (excluding homestead and exempt property)
• NY: $50,000
• FL: $75,000

For estates below the threshold, the heir signs an affidavit, presents it to banks and the DMV, and collects assets — no probate proceeding required.

Above the threshold, formal probate is needed. The threshold determines whether your family deals with paperwork (small-estate) or court (formal probate).

Probate cost — statutory vs hourly

Some states set statutory attorney and executor fees on a sliding scale (CA, FL — same scale, applied separately to executor and attorney). Others bill hourly (most others).

Statutory fee states make probate predictable but often expensive. A $1M estate in California pays roughly $23k in executor fees + $23k in attorney fees + court costs = ~$47k.

Hourly states can be cheaper for clean estates and more expensive for messy ones. A $1M estate in Texas with no complications might cost $5-$10k. Same estate with disputes? Could exceed the California number.

This is why probate-avoidance via trust matters more in some states than others. A funded living trust in California saves $40-50k for a $1M estate; in Texas, it saves maybe $5-10k. The cost-benefit is state-specific.

Will validity across state lines

A will validly executed in one state is generally honored in another, even after a move. Most states have a "foreign will" recognition statute.

But "honored" doesn't mean "ideal." Your old state's will might use language that doesn't fit your new state's defaults. Probate courts in the new state sometimes interpret old-state wording awkwardly. After a state move, re-signing the will in the new state's format is a 30-minute hedge.

Estate-tax thresholds

Federal estate-tax exemption: $13.99M individual, $27.98M couple (2026). Almost no one owes federal estate tax.

State estate-tax thresholds are much lower in the dozen states that have one:

• OR, MA: ~$1M-$2M
• MN: $3M
• IL, ME: $4M-$7M
• NY: ~$7M (with a "cliff" — estates 5%+ over the exemption owe tax on the entire estate, not just the excess)
• CT: ~$13.99M (matched to federal in 2024)
• DC: ~$4.7M
• HI, MD, RI, VT, WA: various, mostly $1M-$5M

Five states impose an inheritance tax (on the heir, not the estate): IA, KY, MD, NE, NJ, PA. Spouse usually exempt; close relatives often partially exempt; distant relatives and non-relatives pay the most.

State estate tax is a real planning consideration if you're near a threshold. State tax attorneys are worth the consultation.

Per-stirpes vs per-capita defaults

If a beneficiary predeceases you, who gets their share? "Per stirpes" — their children. "Per capita" — divided among surviving named beneficiaries.

State default rules vary. Some states have anti-lapse statutes that automatically apply per-stirpes for close relatives. Others let the gift fail unless the will says otherwise.

The fix: don't rely on state defaults. Specify per stirpes (or per capita) explicitly in your will.

Bottom line

State law shapes the will more than people realize. Witness rules, holographic recognition, self-proving affidavits, elective shares, community property, small-estate procedures, probate fees, estate tax — all state-specific.

A state-specific will that knows these variations is worth more than a generic template. After a state move, re-running the will in the new state's template is a low-cost hedge. And for the few states (Louisiana especially) with civil-law systems or unusual rules, an attorney consultation isn't optional — it's the right answer.