The formal requirements for a valid last will often vary by jurisdiction. Therefore, when creating a will, it is important to meet all the legal requirements of your state. If a court holds your will invalid, your assets may fall victim to the laws of intestacy. Though the law varies by state, your will must usually meet five requirements in order to be legally valid.
An individual intends to make a valid will if they desires to make a revocable disposition of property after death. It is also important that you clearly express your intention to make a particular document function as your will. This requirement is easily satisfied by clearly stating “this is my last will and testament” somewhere on your document. Failing to clearly state the document’s purpose may leave the door open for unhappy heirs to contest the will.
A person has “testamentary capacity” to create a valid will if they are of sound mind. This requirement generally mandates that the individual understand that they are creating a will. The individual must recognize the nature of their assets, and desire to distribute their property according to the will’s directives. This requirement does not preclude individuals with common neurological disorders from creating a will, as long as they are lucid when doing so.
States require individuals to be of legal age when creating a binding and enforceable will. In most states, this meanings being at least 18 years of age or older. Exceptions to this rule are typically given to lawfully married individuals, legally emancipated minors, and members of the United States military. In rare circumstances, further exceptions may be made for minor’s who have inherited or earned a large sum of money.
Signing your will is crucial to its validity. Because your signature serves as your attestation to the will’s contents, failing to sign your will may be very problematic. Although you must sign your will, state requirements may vary regarding how and where. Some states require that you sign at the end, while others only require that you sign somewhere in the document. If a testator is physically incapable of signing their will, a representative may sign on the testator’s behalf, as long as they sign with the testator’s consent and in the testator’s presence. Wills signed involuntarily under duress, fraud or coercion are invalid.
A will must usually be signed in the presence of two or more disinterested, adult witnesses. These witnesses must also sign the will themselves. These witnesses may have to testify in court if a will becomes contested.
Although a will does not have to be notarized in order to be legally binding, having your will notarized will prove that the signature on the will is that of the deceased. Absent notarization, the subscribing witnesses will generally have to testify to this fact in court. For this reason, individuals should have a public notary present at the time the will is executed.