Although a last will and testament doesn't take effect until the death of the testator, or person writing the will, ensuring that the will is valid well before that person's death is crucial. State law varies slightly regarding will requirements, but for the most part, the basic requirements for a will to be valid are fairly consistent across jurisdictions.
Here are three key points that make a will legal.
1. Mental capacity
For a will to be valid, the testator must be of sound mind. Generally, this means that the testator must be an adult, 18 or older, and be conscious and aware of what they are doing. Some states also require that the testator have an understanding of the disposition of the assets in the document.
Challenges to a last will often involve allegations of a testator's lack of capacity to execute the document. Such arguments could include that the testator was under duress, threats, fraud, or coercion and didn't draw up the document under their own free will.
To be valid, a will must be signed by the testator. Deathbed signatures by a testator can be just as valid as any other signatures provided the person signing the will has the capacity to do so, as described above.
In addition to the testator's signature, most states also require the signatures of two witnesses who are at least 18 years old and who witness the testator signing the will; some states require three witnesses. Getting a last will witnessed, therefore, usually entails a meeting with a small group of people, including the testator and witnesses.
The person named as executor in the will does not have to sign the will for it to be valid. In fact, some jurisdictions specifically require the signatures of disinterested witnesses. In many instances, the executor of a will is also a named beneficiary, which would make them an interested party and ineligible to be one of the witnesses.
3. Notary public
A will does not need to be notarized to be valid, but the topic is included here because taking this extra step of involving a notary public could be helpful later on. During probate, the court-supervised process of distributing the property of a deceased person, a "self-proving affidavit" could help prove your will is valid.
To execute this affidavit, you and your witnesses must appear in front of a notary public to sign this sworn statement. Some states consider this type of affidavit as convincing proof of a will's validity.
Whether you have an estate planning attorney prepare your will, use an online service, or draw up a homemade will yourself, the requirements of a valid will apply. Accordingly, you should make sure that you have met all of your jurisdiction's requirements or you risk your will being just another piece of paper.
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