What Makes a Will Valid?
Make sure your will holds up in probate court
on November 30, 2022
Updated on January 29, 2023
A last will and testament is a legal document that makes your final wishes known and sets a plan for how your estate will be distributed when you die.
A will gives peace of mind to yourself and your loved ones. Fortunately, wills are not difficult to create.
As noted below, state laws set the requirements for legal wills, and state laws vary. However, “There are some basic requirements that are fairly universal,” says Missouri estate litigation lawyer Robert Will.
This article will explain the basic requirements for a will. Once you understand the general requirements, it’s important to speak with an estate planning lawyer who is well-versed in your state’s specific rules.
A lawyer can also help you build your overall estate plan to ensure your last wishes are fulfilled.
What Makes a Will Legal?
As the creator of a will, you are called the “testator.” As a testator, you do a few important things in a will, including:
- State your final wishes
- Name beneficiaries for the distribution of your estate assets
- Appoint a personal representative (also called an executor) to ensure your final wishes are followed
Specifically, the executor is an individual who is authorized to:
- Collect your assets when you die
- File your will with the local probate court
- Guide your estate through the probate process
- Represent your estate’s interests in court
- Ensure the estate property is distributed according to your wishes as stated in the will
- Pay your creditors
- Distribute the remaining assets to the persons or organizations or charities of your choice
Individuals who die without a will are called “intestate.” This means that state intestate succession laws will determine how an individual’s estate assets are distributed.
Intestacy laws vary by state, so intestate succession can differ depending on where you live. Typically, however, intestate succession starts with one’s surviving spouse or adult or minor children, and, if none, to surviving parents, siblings, aunts, uncles, nieces, nephews, and possibly more distant relatives.
Read this article to learn more about intestate succession.
Basic Requirements for a Valid Will
The first thing to realize about valid wills is that laws governing wills and estate planning vary from state to state. So, before starting your will, it’s imperative to understand what your state laws are.
Despite the variety of estate planning laws, there are a few basic requirements for legally valid wills regardless of which state you live in:
- The will needs to be in writing. This can be handwritten or (more usually) typed. “Most states require something in writing, but the required formality of that writing varies by state. Oral (or “nuncupative”) wills are generally not enforceable since most states have statutes of frauds and you have to have something in writing for it to be enforceable. Even in states that permit them, there are often significant limitations as to when they would be honored,” says Will.
- You must sign the will. You must sign and date the will. If you are physically unable to sign your name, you can direct someone else to sign the will on your behalf as long as others witness the signing.
- There must be witnesses. You must sign the will in the presence of witnesses. State laws set the requirement for the number of witnesses, but typically it must be two or three people who are not beneficiaries of the will.
In addition to meeting these basic requirements for properly drafting the will, you need to ensure that the following issues are addressed:
- Age. The testator must be of legal age or “the age of majority.” In most states, this is 18 years of age.
- Sound mind. One common challenge to the validity of wills is that the testator didn’t have the requisite mental capacity to create a will. This is called the issue of “testamentary capacity.” Fortunately, it is relatively easy for a testator to meet the standard for testamentary capacity. As Will explains, “[a basic requirement for valid wills] is that the person be of sound mind and capable of making decisions about how they want their property to be distributed. This does not have to be full legal capacity. For example, someone could have diminished capacity such that they couldn’t sign a contract, but they can still make a will. [This] fairly low level of mental capacity is called ‘testamentary capacity’ in most states.” Generally, the testator needs to show they understand the purpose and consequences of creating a will, what their assets are, and who their beneficiaries are. If the testator has died, witnesses to the will can attest to mental capacity, as well as the testator’s attorney or healthcare professionals.
- Undue influence. Another challenge to the validity of wills is the testator was manipulated or coerced by someone else to distribute assets in a certain way. Instead of expressing the testator’s true wishes, the will is for the advantage of another person. Often, this involves everything in a will being left to one person instead of the testator’s loved ones. Persons with diminished capacity often tend to be more susceptive to undue influence.
What is Not (Necessarily) Needed for a Valid Will
Getting your will notarized by a notary public is not required for a valid will.
However, notarization is required for self-proving affidavits. In a self-proving affidavit, the witnesses to the will give attestation to the will’s validity. This affidavit can be used in probate court to help prove the will’s validity.
This is often helpful if the witnesses who signed the will are unavailable in probate court for some reason. The affidavit can help the probate process go forward more smoothly.
What to Avoid
While handwritten wills are generally acceptable (the will must be in writing, after all), handwritten wills that are not witnessed are problematic.
Handwritten, unwitnessed wills are called holographic wills. Because there are no witnesses and the will is in handwriting, it is more difficult to prove their validity. Because of this, handwritten wills are more susceptible to challenges and disputes in probate court.
Additionally, not all states recognize the validity of holographic wills. In fact, only about half of the states will even allow holographic wills to be proven in probate court.
So, while having a holographic will might be better than having no will at all if you live in a state that accepts holographic wills, they are not the best option if you have time to plan ahead.
Questions for an Estate Planning Attorney
Most estate planning lawyers give free consultations for potential clients, letting you get legal advice about your will and estate plan and determine is a lawyer is right for you.
To get the most out of a consultation, ask informed questions such as:
- What are your attorney’s fees and billing options?
- What estate planning services do you offer?
- How do I ensure that my will is valid?
- What happens if I need to change my will?
- How do I pick an executor?
Once you have met with a lawyer and gotten your questions answered, you can begin an attorney-client relationship.
Look for a lawyer specializing in wills in the Super Lawyers directory for your estate planning needs.