What makes a will invalid?
Ensuring a will is in place is essential if you want your family and loved ones to be provided for.
You need to know what makes a will invalid to ensure that any named beneficiaries receive what you intend them to.
There are many things to consider when making a valid will that will help the probate process go smoothly.
Most people seek legal advice from an estate planning attorney or notary.
You must also be aware of state laws regarding last will and testaments and estate planning documents.
There’s also a growing trend for people to use a digital last will and testament template to speed up the process.
What are the requirements for a will to be valid?
While requirements for a valid will vary between states, there are several common to all.
The person making the will must:
1. Be of legal age
Be of legal age, which is at least 18 in most states.
However, there may be exceptions if the person is married or in the armed forces.
2. Be under no undue influence
Be under no undue influence. The testator must have made the will free of coercion.
3. Have testamentary capacity
Have testamentary capacity. The person making the will must be of sound mind and have the mental capacity to make decisions regarding beneficiaries.
4. Name beneficiaries
Name beneficiaries. These can be one person, a group of relatives/friends, or even a caregiver, charitable organization, or special trust fund.
5. Identify assets
Identify assets. A valid will should list all assets owned by the person making the will.
That can include any properties and financial assets (like shares or bank accounts), as well as any other tangible assets (like artwork or vehicles).
6. Name an executor
Name an executor responsible for ensuring that the conditions set out in the will are carried out.
This may be a friend, a relative, or an attorney. If no executor is named, probate court may name one.
7. Name any spouse and minor children
Name any spouse and minor children.
All states have laws that protect any spouse’s rights, and they have the right to claim an elective share of the estate.
In general, states allow a testator to disinherit children, but laws vary as to how that should be done.
8. Write or type and sign the will
Write or type and sign the will. Some states will accept a handwritten holographic will, and some will accept an oral will that meets specific conditions.
9. Have witnesses
Have witnesses when creating the will.
Most states require witnesses when a will is being signed.
They may have to attest that they saw any other witnesses sign. Some states don’t allow beneficiaries to be witnesses.
10. Formal legal ceremony
Some states require the will signing process to be a formal legal ceremony, and anyone unconnected with the process must leave the room.
How long is a will valid?
There are two parts to validity.
While the testator is still alive, the will remains valid indefinitely. However, it’s advisable to review it roughly every three years in case any relevant laws have changed.
Once the testator dies, the will usually remains valid indefinitely.
However, some states may require probate to be carried out within a certain timeframe.
If previous wills have been made, the newest will should contain a phrase like “I revoke all previously executed wills.” This validates the new will.
What invalidates a will?
What would make a will invalid?
There are many common mistakes, including:
- The will not being signed in accordance with local or state laws
- The will being altered
- A legally valid will that was made and signed at a later date being discovered
- Evidence arising that there was some coercion involved when making the will
- Contesting of the will, with evidence, that the testator wasn’t of sound mind and had a lack of testamentary capacity when they made the will.
- The will being challenged on the basis that it lacks clarity regarding how the testator wants certain assets disposed of.
When might a will become invalid or otherwise need changing?
There are also scenarios where an existing will may need to be changed.
When this happens, the current will must be legally amended, or a completely new one must be written.
The circumstances under which it may be necessary to do this include:
- One of the beneficiaries dying
- There being new additions to the family, and the testator wanting those people included
- People getting married or divorced
- The testator acquiring new valuable assets or property
- The testator acquiring a large amount of money or debt
- The testator moving to a different state where the laws surrounding wills and probate are different from their previous home state
- Circumstances changing and the testator wanting to make a significant codicil or add an addendum to their previous will
What happens if a will is invalid?
If a court declares a will invalid, there are usually two possible outcomes.
With an invalid will, the first outcome would see all assets distributed according to the previous will made.
When there’s no previous will in existence, the estate would be distributed according to the rules of intestacy.
When an estate is declared intestate, assets would be distributed only to legal or civil partners and some other close relatives.
Protect your loved ones with a valid will
You want to know that, when you die, any loved ones or close friends receive the portion of your estate you intended for them.
You want to avoid the common reasons that cause a will to be invalidated and ensure your will is a binding legal document that encompasses all your wishes.
Ensuring the validity of a will and that it meets state regulations is essential.
Many people also choose to use PandaDoc’s living will template that expresses their wishes should they lose capacity due to health reasons.