Each state's last will and testament laws determine whether a will is valid. These laws can be detailed and exacting, and all must be met to ensure that the court will accept your will and honor its terms. An entire will can be invalidated and thrown out for one seemingly minor mistake. Its terms won't be binding.
Laws for Making a Will
Each state has specific requirements that a last will and testament must meet to be legally enforceable. Some of the common requirements in most states include:
- 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, if you've joined the military, or if you've taken steps to judicially separate yourself from them by asking the court to emancipate you.
- You must be of sound mind. Most states take this to mean that you have an understanding of what you own that you can leave to others, of your relationship with those beneficiaries, and that you're leaving them that property in your will. You might have suffered from mental illness in the past, but you're usually considered to have "testamentary capacity" if you're lucid and you're aware of these things on the day you sign your will.
- A will must be signed by the person making it, sometimes called the testator. The court will most likely declare that your will is invalid if you neglect this very important step. 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.
- Most states require that at least two disinterested witnesses watch you sign your will and sign it themselves. Disinterested means that they're not beneficiaries under the terms of your will, but some states allow beneficiaries to witness your will anyway if an additional witness signs as well.
You can make it easier on your witnesses if you include a self-proving affidavit with your will, stating that your witnesses did indeed watch you sign it and that you told them what you were signing. They wouldn't have to testify in court to this information after your death if you took this extra step.
Special Types of Wills
Some states allow for "holographic" wills that are prepared entirely in the testator's handwriting. "Entirely" is the key word. Printed wills with handwriting inserted most likely will not be honored as valid, or at least the handwritten portions will be ignored. Holographic wills don't have to be witnessed in all states that recognize them.
Other states' laws provide for "nuncupative" wills, which are 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 within a relatively short period of time after the death.
Disinheriting Your Spouse
Attempting to disinherit your spouse can also invalidate your will. Every state has some statutory mechanism in place that will prevent you from doing this.
Your spouse can make an election with the court in most states to disregard the terms of your will and take a statutory share of your property instead, that which they would have been entitled to if you had died without a will.
A spouse's "elective" or statutory share of your estate might be anywhere from one-third to half of your property, and sometimes even more if you don't leave any descendants.
Your spouse holds automatic ownership of half your marital estate if you live in a community property estate. You're legally prohibited from giving this share of your assets to any other beneficiary, and trying to do so could potentially invalidate your will.
If the Formalities Aren't Followed
One of two things will occur if you fail to follow all your state's formalities so your will isn't accepted by the court as legally valid.
- Your estate will pass under the intestacy laws of the state where you lived at the time of your death. Your property would go to your closest living relatives, regardless of whether this is what you intended or conveyed in your will.
- Your estate will pass to your beneficiaries under the terms of a prior will if you made one, if it can be located, and if that one is considered valid.
Ask an attorney to prepare your will for you if you want the final word on what happens to your estate after you die, and if you want to be as sure as possibly that the terms of your will be honored. At the very least, take your will to an attorney for review and approval if you decide to write one yourself.