Posted by Dennis Jao

What Makes a Will Legal?

What Makes a Will Legal?

State laws vary when it comes to the requirements for what counts as a legal will, but you generally need to make sure a few basics are covered.

Although a testament and last will do not come into force until the testator's death or the person making the will, it is essential to ensure that the will is valid and legal well before the person's death. State law varies somewhat depending on the requirements of a will, but for the most part, the basic requirements for a will to be legally valid are fairly consistent across jurisdictions.

Here are basic points that make a will legal.


Mental capacity

For a will to be legally valid, the testator must be in good health. Usually, this means that the testator should be an adult over the age of eighteen (18) and aware of what they are doing. Some states also require the testator to understand the resource layout in the document.

Challenges to a last will often involve accusations of the testator's inability to execute the document. Such arguments may include the fact that the testator was subjected to coercion, threats, fraud, or duress and did not write the document on their own or of their own free will.


Signatures

For a will to be legally valid, the testator must sign it. The signatures of the testator on the deathbed can be as valid as any other signature, provided that 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 signature of two witnesses who are at least eighteen (18) years of age and witnesses to the signature by the testator; some states require three witnesses. Obtaining a last will witnessed usually involves meeting with a small group of people, including the testator and witnesses.

The individual named as executor does not have to sign the will for it to be valid. Some jurisdictions specifically require the signing of disinterested witnesses. In many cases, the executor is also a named beneficiary, which would make them an interested party and ineligible to be part of the witness.


Notary Public

A will does not need to be notarized to be valid, but the subject matter is included here, as this extra step of involving a notary can be helpful later. During probate, the court-supervised process of distributing a deceased person's property, a "self-proving affidavit," can help prove the validity of your will.

To implement this affidavit, you and your witnesses must appear before a notary to sign this declaration. Some states consider this type of statement to be convincing proof of the validity of a will.

Whether you have a real estate planning attorney preparing your will, using an online service, or creating a will for your home, the validity requirements will apply. Therefore, you need to make sure that you have met all the requirements of your jurisdiction or risk your will being just another sheet of paper.


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Dennis Jao
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