Estate Planning: What Makes a Will Legal?

Only 46 percent of Americans have a will.

If you don’t have a will, you’re putting your assets and next of kin in a dicey situation. Dying intestate (without a will) means your assets will be distributed according to the laws of your state. The prospect of a good chunk of your estate ending up in the possession of undeserving people is real.

Ready to write a will and put your estate in order? Good!

However, will writing has to follow certain rules; otherwise, it can be declared invalid during probate. So, what makes a will legal?

Mental Competence

Not everybody can write a will.

A testator must be a legal adult, meaning they must be 18 or older. They must also have the mental capacity to comprehend what they’re doing.

The matter of age is pretty straightforward. It’s the mental capacity requirement that often makes matters a bit complicated. You see, most people don’t write a will when they’re in good health. It’s not uncommon to find aging people in hospitals, nursing homes, and memory care facilities writing their last will and testament for the first time.

There’s nothing illegal about this and many times deathbed wills go through the probate process successfully. However, this usually happens when the testator has left behind a close-knit family that can iron out succession issues among themselves.

In some cases, though, rightful heirs who might feel left out can have grounds to contest the will if they realize it was written during a time when the testator’s mental capacity was in a decline.

Signatures

A will isn’t valid if there are no witnesses. So if you have an estate planning document written in your own privacy, it’s not going to hold up in court if you passed on today.

Your signature as the testator must be on the document, as is the signature of 2-3 other witnesses. The number of witnesses required for a will to be valid varies from state to state.

Also, depending on your state, there are people who aren’t allowed to be witnesses. For instance, some states disallow executors from being signatories to a will. In other states, it’s fine for interested parties (heirs) to be witnesses.

These varying laws are the reason hiring an estate planning attorney is essential. Click here to learn more about estate planning essentials.

Notarization

Notarization is the process of authenticating and legitimizing a will by a notary public. Although notarization isn’t a must for a will to be valid, it’s recommended to do so to make probate easier.

Wills can be notarized at the time of writing, making them self-proving. You can also do this at a later time.

Know What Makes a Will Legal

There isn’t much value in writing a will if it’s going to be contested in court and declared invalid. You can avoid this by knowing what makes a will legal. Laws vary depending on the state but generally speaking, you need to be of legal adult age and sound mind and have enough witnesses.

Explore our blog for more helpful estate planning advice.