Legal Requirements for a Will

When you create a Last Will and Testament, be aware that there are specific legal requirements you must include in your document for it to be legally valid. These requirements vary from state to state, but regardless of where you live in the US, include:

  • Minimum Age

  • Mental Capacity of the Testator (creator of the will)

  • Intent of the Testator

  • Signatures

  • Witnesses 

Minimum Age Requirement

In most states, the minimum age for a person to create a legally binding Last Will and Testament is 18 years old. However, there are a few exceptions. In Louisiana, the minimum age is 16 years, while in Georgia, it’s only 14. 

Some states may make exemptions for emancipated minors, but others, including Arkansas and California, still require the testator to be at least 18 years old. The probate court may make exceptions for minors under special circumstances, such as if the will concerns a sizable estate. 

Intent of the Testator

For your Last Will and Testament to be valid, the probate court requires you to state your intent through specific words and phrases.

The phrase “This is the last will and testament of [your name]” must be clearly stated at the beginning of the document to legally indicate that it is a will. Without this declaration, your will may not be accepted by the court.

Capacity of the Testator

Another mandatory legal requirement for any Last Will and Testament, regardless of your home state, is that you have a sound mental state at the time your will is created and signed. Like the intention requirement, this rule is set in place by law to protect you against manipulation or fraud. 

The common term is “sound mind.” This simply means that you were fully aware of your actions at the time that you signed your will and were not coerced in any way by another party. If you have been diagnosed with a health issue that casts doubt on your mental capacity, you can include a signed statement from a doctor attesting to your sound mental state when you signed your will. 

Required Signatures 

In addition to stating your intention and soundness of mind, your will is not considered legally binding until you sign the document. You must also have two witnesses verify your signature and sign the will. 

Types of Witnesses

The Probate Court requires that two witnesses sign your Last Will and Testament. Both parties must be legal adults over 18 years old. The witnesses must also be willing to verify the testator’s signature and their own signatures before the court, if necessary.  

Adding a Self-Proving Affidavit to your will validates all signatures and may help your loved ones avoid unnecessary issues with the will. 

Most states require you to use “disinterested” witnesses — i.e., parties who do not benefit from your will. Massachusetts and California allow an “interested” witness to sign a will, but only with two additional disinterested witness signatures. To avoid issues during the probate process, secure witnesses who are not beneficiaries in your will. 

Invalid Wills

If your will does not meet the legal requirements set forth by the probate court for any reason, it will be considered invalid and set aside. The court may then use a previously signed will to settle your estate. If another will cannot be found or does not exist, your estate will be transferred to your closest relatives. 

To avoid complications with your estate and to ensure that all of your final instructions are followed precisely, make sure that your Last Will and Testament adheres to all legal requirements. 

Other Types of Wills

Most wills are printed and signed, but some states allow other options:

  1. A holographic will, sadly, does not involve holograms. It is a will written by hand and signed by the testator. This type of will does not require witnesses, but two or more parties may be called in to verify the handwriting of the testator.

  2. An oral will is not generally accepted in most states, except under very limited circumstances. An oral will is similar to a deathbed confession, and the presence of an imminent threat of danger is required.

  3. Video wills, despite being commonly depicted in movies and TV, are usually not considered legally valid. If you want to leave a video message to your loved ones after you depart, make sure you first create a legally-binding document, signed and verified by witnesses, before you hit record. 

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