Will Legal Requirements
Age
Most states require you to be at least 18 years old to create a legally binding will. Some exceptions are Georgia which permit 14 year olds to create a Will; and Louisiana which permits a 16-year olds to create a Will.
Clear Intent
You must clearly express your intentions. To do this, your document must have explicit language such as “This is my last will and testament”. This is vital to avoid doubt or confusion as to the document’s purpose and your intentions.
Sound Mind
You must be aware of your actions when creating the will. More specifically, at the time the will is made, you understand that you’re creating a will, the nature of the property you own, and to whom you’re leaving your property. Even a person with dementia or Alzheimer’s may be deemed to have a sound mind, if lucid at the moment of signing. If a testator believes there might be any doubt as to his or her mental capacity at the time of the signing, a letter from a doctor affirming mental competence generally can be included with the will.
If someone challenges a will on the grounds that the person creating the will (testator) lack the mental capacity, that person has the burden of proving that the testator wasn’t “of sound mind,” at the time the will was created. Probate courts generally presume that the will-maker had the requisite mental competence.
Signing
You must sign your will. This step is critical because the signature is your attestation that this is your will and that you agree with its contents.
If you are physically unable to sign the will, a representative is usually permitted to sign for you with your consent and in your presence. When signing the will, you must do so voluntarily, free of fraud, coercion or duress. For example, if someone threatens to harm you if you don’t sign the will, this is considered coercion or duress. If it is revealed that you signed the will under fraudulent circumstances, the entire will is certain to be invalidated.
Witnessing
You must have at least two adult witnesses sign the will (Vermont requires three). By signing the will, the witnesses are attesting that they know the document being signed is meant to be a will, and that when the testator (the person making the will) signed it, he or she appeared to be of sound mind. If any argument about the will arises after the will-maker’s death, the witnesses might be called to testify about the will-signing in court.
Many states require witnesses to be “disinterested,” meaning that they won’t benefit from the will. Having disinterested witnesses helps avoid the suggestion that the witness coerced the testator to sign the will for personal gain. If an interested party violates state law by serving as a witness, then the bequest to that witness is likely to be voided.
In states that do allow interested witnesses, the law often demands an extra signatory safeguard. In Massachusetts and California, for example, an interested witness can sign the will only if two disinterested witnesses also sign it. But because of the high stakes involved, it’s generally recommended to use only disinterested witnesses whenever possible.
Note that the signatures on a will do not have to be notarized for the will to be legally binding. Notarization is only necessary when the will contains a self-proving affidavit, a sworn statement attesting to the validity of the will. However, it is recommended that you notarize your documents.
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