State laws differ on the requirements for a legitimate will, but usually, you should make sure you have a couple of bases covered.
Even though a last will and testament won’t go into effect until the passing of the testator, or individual creating the will, guaranteeing that your will is legitimate well in advance of that individual’s passing is vital. State laws differ slightly regarding will requirements, but mostly, the primary requirements for a will to be legitimate are quite uniform across them.
The following are 3 primary points that make a will legal.
1. Mental Capacity
For a will to be legitimate, the testator must be in their right mind. Typically, this means that the testator is required to be an adult, eighteen or older, and be mindful and aware of what they’re doing. Many states also have the requirement that the testator have a comprehension of the disposition of the assets in the documentation.
Disputes to a last will typically involve claims of a testator’s absence of capacity to execute the document. Such disputes could include that the testator was pressured, threatened, by fraud, or coercion and didn’t create the document under their freedom of choice.
To be legitimate, a will is required be signed by its creator. Deathbed signatures by a testator can be just as legitimate as other signatures as long as the individual signing the will has the ability to do so, as aforementioned above.
Apart from the testator’s signature, a lot of states also have the requirement of the signatures of two witnesses that are at a minimum of eighteen years old and who witnesses the testator signing the will; many states have the requirement of three witnesses. Getting a last will witnessed, as a result, typically involves a meeting with a small gathering of individuals, including the testator and their witnesses.
The individual appointed as executor in the will is not required to sign the will for it to be legitimate. Actually, many jurisdictions particularly require the signatures of unbiased witnesses. In many cases, the executor of a will is also an appointed beneficiary, in which makes them an interested party and unacceptable to be a witness.
3. Notary Public
A will is not required to be notarized to be legitimate, but the topic is included in this post since taking this additional step of having a notary public involved could be beneficial later. Throughout probate, the court-administered process of allocating the property of a deceased individual, a “self-proving affidavit” could assist in demonstrating that your will is legitimate
To carry out this affidavit, you and your witnesses are required to present yourselves in front of a notary public to sign this sworn testimony. Some states regard this kind of affidavit as compelling proof of a will’s legitimacy.
If you’re going to have an estate planning attorney arrange your will, utilize an on-line service, or draw up a DIY will, the requirements of a legitimate are going to apply. Consequently, you should be sure that you have fulfilled all of your jurisdiction’s requirements or there’s a chance your will is just another piece of paper.
Kaminsky, M. (2021, August 16). What makes a will legal? LegalZoom. https://www.legalzoom.com/articles/what-makes-a-will-legal.
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