What makes a will legal?
Since you’re here, it’s likely you’re drafting your own will or have at least thought about it.
Sure, you have a life insurance policy, but how certain can you be that the money will get to your surviving spouse or other family members?
It goes without saying that you want to ensure your loved ones are looked after. So what makes a will legal?
Whether you’re creating a new will or altering one you’ve already made, it’s best to understand the impact of state laws and how the probate process declares a will valid (or not).
Who exactly makes a will?
The person who creates a will is legally known as the testator of the document.
This term is used in legal documents such as wills or codicils that cover estate planning.
Certain legal requirements must be met to qualify as a testator.
These rules vary from state to state, so it’s best to contact a local estate planning attorney for legal advice.
With that said, in general a testator must:
- Be at least 18 years of age
- Possess testamentary capacity–the legal and mental ability to create or alter the will
- Ensure certain conditions are met. Some states allow for oral wills, holographic (handwritten) wills, and other written wills. Others have harsher restrictions about who qualifies to witness a will.
If you pass on without leaving a valid will behind, this is known as intestacy. In the case of an intestate estate, your assets, like real estate, will be distributed according to state laws.
Additionally, any minor children will be given guardianship according to intestacy laws.
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What is considered a legal will?
So, how do you make a will legal?
For an estate planning document like a will to be considered legally-binding, certain criteria must be met. Legal requirements will vary, so verify with your local estate planning law firm.
1. Mental capacity
A testator will only be recognized by the courts if they are said to be of “sound mind.”
In other words, they must be mentally capable of creating or altering a will. If this is not the case, all decisions must be made by a living trust or an individual who possesses durable power of attorney.
Many wills are created long before a testator retires from the working world.
Mental capacity is more likely to be an issue that is challenged when changes are made during a person’s twilight years.
Named beneficiaries are most likely to challenge any document changes that affect them.
Common accusations are that the testator had made alterations due to threat, manipulation, duress, or coercion and not voluntarily.
One of your responsibilities as a testator is to sign the will. Additionally, most states require the signatures of two witnesses over the age of 18.
Many states require that disinterested witnesses sign the will. This means people who are not named beneficiaries.
Is a written will legal?
Written wills are legal as long as certain regulations are met.
Like any other simple will, most states require the signature of two witnesses to make it a valid document.
As long as an executor and beneficiaries are named, the document should hold up in court.
Some states allow for a holographic will.
This type of will is typically created when the testator finds themselves in circumstances such as a medical emergency or a freak accident.
Holographic wills are a last-minute attempt to establish some form of estate planning. The testator’s presence at signing is typically proved by handwriting analysis.
Is a verbal will legally enforceable?
In most states, only written wills are legally enforceable.
However, a small number of jurisdictions allow for an oral will to be valid. In these cases, verbal wills are only enforceable if the testator has left behind no other valid will.
Naturally, proving the existence of an oral will has its complications. It’s always best practice to get everything in writing.
Does a will have to be registered?
You are not required to register your will.
However, registration can give local authorities useful information. For instance, that the will actually exists, and where it’s located.
Occasionally, you may be able to store a will with the probate court after registration.
Is a will still valid if not notarized?
An unnotarized will can still be valid if it meets the legal requirements in your state.
After you’ve passed away, your witnesses will need to testify to the validity of all signatures, including yours, in probate court.
This process can be stressful and complicated.
The easier option is to use notarization to add a self-proving affidavit to your will. In this instance, the signing of the will takes place in front of the notary public.
Once the observing party is satisfied, the document will be notarized with an official notary seal.
An even easier approach is to use electronic signatures and Remote Online Notarization (RON).
With PandaDoc, you can get a notary on demand with state-approved Remote Online Notarization (RON) and get started on the road to estate planning with our free living will template.
Secure your assets with a legally valid will
Estate planning is something people put off, but do so at their peril.
An unforeseen death due to an accident or health care issues will greatly complicate the legacy you leave behind.
Now that you know what makes a will legal, you can prevent this by starting to prepare your will now.
Secure assets for your loved ones by using a service like PandaDoc Notary to ensure a legally valid will is left behind when you’re gone.