Is Your Last Will and Testament Legally Binding?
Laws That Must Be Met to Make a Last Will Valid
Last will and testament laws determine the validity of wills. They can be detailed and exacting, but it's important that you observe all those required in your state to ensure that the court accepts your will as valid.
Last Will and Testament Laws for Making a Will
Each U.S. state has its specific requirements that a last will and testament must meet to be legally enforceable. Some common requirements in most states include:
- Your age: You must typically be over the age of 18 or an emancipated minor, beyond the scope of your parents' control, to make a will. You might move beyond your parents' control because you've married, or even single, joined the military, or you've taken steps to judicially separate yourself from them by asking the court to emancipate you.
- Testamentary capacity: You must be of sound mind. Most states take this to mean that you have an understanding of what you own to leave to others, your relationship with those beneficiaries and that you are indeed leaving them this property in your will. You may have suffered from mental illness in the past, but if you're lucid and aware of these things on the day you make and sign your will, it's usually considered that you have testamentary capacity.
- Your signature: All wills must be signed by the person making it, sometimes called the testator. If you neglect this very important step, the court may declare that your will is invalid. Your signature must be in your handwriting or signed by someone else at your specific direction if you're physically unable to sign your name. The signature must typically appear at the very end of the document.
- Witnesses: Most states require that at least two disinterested persons watch you sign your will and sign it themselves. Disinterested means they are not beneficiaries under the terms of your will. Some states allow interested witnesses to sign anyway, but an additional witness would also be required.
Special Types of Wills
Some states allow for "holographic" wills prepared entirely in the testator's handwriting. Holographic wills do not have to be witnessed in all states that recognize them.
Other states' laws provide for "nuncupative" wills spoken aloud in front of at least two witnesses. Also called "deathbed" wills, these are usually only recognized under limited circumstances, such as at times of imminent death. The witnesses are typically responsible for committing the will to writing and submitting it to the probate court a relatively short period of time after the death.
Refer to What Are the Different Types of Last Will and Testaments? To learn more about the different types of wills recognized in the U.S. Last will and testament laws governing holographic and nuncupative wills can vary considerably from state to state.
What Happens if the Formalities of Signing a Will Are Not Followed?
If you fail to follow all your state's specific formalities, your will may not be accepted by the court as legally valid. One of two things can happen when this occurs:
- Your estate will pass under the intestacy laws of the state where you lived at the time of your death. This means your property will go to your closest living relatives, regardless of whether this is what you intended or conveyed in your will.
- Your estate may pass to your beneficiaries under the terms of a prior will if you made one, it can be located, and that one is considered valid.
If you want to have the final word on what happens to your estate after you die, ask an attorney to prepare your will for you. If you draft one yourself, take it to an attorney for review.