The requirements for a valid will are dependent on the jurisdiction you are in. You should check your own state’s code to make sure you have satisfied all requirements for your will, but in general, the following are the criteria by which a will is judged to be valid.
- The person drafting the will must be of the age of majority (check your states code, usually 18 or 21).
- The person drafting the will must have capacity (be of sound mind).
- The person drafting the will must clearly identify him/herself and that the will is being drafted. Most of the time, including the words “last will and testament” on the face of the form will suffice.
- The person drafting the will should declare that he/she is revoking all previous wills and codicils. The word should is used because failure to do this results in the new will override the old only where they are inconsistent.
- It is suggested the person drafting state he/she is of sound mind and is making this will freely and willingly.
- The person drafting the will should clearly identify any beneficiaries.
- The person drafting the will must sign and date the document, in most jurisdictions, within the presence of two people who are not beneficiaries. However, there are jurisdictions that require no witnesses and jurisdictions that require witnesses plus the requirement of notarization. Also, the signature should be at the end of the text, otherwise, some jurisdictions ignore any text that succeeds the signature.
At this point you may be thinking, so if it’s that straightforward, why would I hire an attorney? The answer is that when a will comes into play, the person is gone, so it makes it very difficult to backfill a technical deficiency or lack of specificity. Besides allowing the deceased’s wishes to be carried out, a will allows for estate disbursements outside of the intestate process, which is where a court becomes involved in asset distribution. On a secondary level, a will can lower the stress that often accompanies the loss of a loved one, eliminate potential conflicts among beneficiaries, and decrease the taxes applicable to estate transfer.
While the legal capacity requirement of a will is easily determined, the testamentary capacity of a person who made a will is often disputed. The elements necessary to establish the testator was of sound mind include: the testator intended to the writing to be a will, he/she knew the nature and extent of the disposable property, ability to recognize the people who would “naturally” benefit from the testator’s death, and simultaneously be able to retain the first three elements in the testator’s mind so as to make reasonable judgments. Each state has its own requirements for a validly executed will.
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