Legal Age. In the majority of states, you must be at least 18 years old to create a legally binding will. Some exceptions exist, however. Georgia and Louisiana permit 14- and 16-year olds, respectively, to create wills. Many states also allow legally emancipated minors and underage members of the military to make a last will and testament. In special circumstances, such as when a minor has inherited or earned a large sum of money, the minor’s parents or guardians may petition a court to permit the child to create a will.
Testamentary Intent. You must clearly express your intention to make a particular document function as your will. To satisfy this requirement, your will should include explicit language such as “This is my last will and testament.” This element is vital to avoid doubt or confusion as to the document’s purpose and your intentions.
To illustrate: if Mary sends John a signed letter stating that she wants to leave all her property to him, after Mary dies John cannot rightfully claim that the letter was her last will. Unless Mary expressly indicated the letter was intended to be her will (and it met the other legal requirements of a will), the mere expression of her wishes doesn’t legally create a will.
Testamentary Capacity. You must be of “sound mind” to create a valid will. This generally means that you’re aware of your actions when creating the will. More specifically, it means that 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.
Note that if someone challenges a will on the grounds of the testator’s lack of 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.
Your Signature. 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’re 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.
Valid Witnesses. You must have at least two adult witnesses sign the will (although 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.
In creating a legally valid will, certain formalities must be observed with regard to the will’s form. Most wills must be typewritten, signed and witnessed as described above, but there are specific exceptions:
Holographic Wills. A holographic will is one that’s entirely handwritten and dated and signed by the testator. It doesn’t have to be witnessed, although two disinterested witnesses typically must identify the will-maker’s handwriting for it to be valid. Excepting the witness requirement, a holographic will must meet the other core legal requirements of a will. About half of all states permit handwritten wills.
Oral Wills. Spoken wills, also known as “nuncupative wills”, are recognized only by a few states and in very limited circumstances. A valid oral will generally requires the testator to have made the will when in imminent danger of death (such as when a soldier is on active war duty), and in the presence of two witnesses. Because the circumstances are so restricted, oral wills are rarely validated.
Video Wills. A video will is a subset of an oral will. This means video wills aren’t legally binding in states that require wills to be written. In states that accept oral wills, however, a video will is permissible as long as the other the requirements of an oral will are met. That said, video wills can be useful in other ways. Among other things, it can help demonstrate that the will-maker was of sound mind and free from duress at the time of creating a written will.
So, what happens if the legal requirements of a will are not met? One of two consequences occurs:
A Previous Will Applies. If the probate court can identify an earlier will that meets all the legal requirements, the courts will likely apply the terms of that prior will.
Intestacy. If a prior will has not been identified and validated, then your state intestate succession laws will apply. In most circumstances, this means your property will pass to your closest relations as dictated by state law.
Having your will invalidated not only means that your final wishes aren’t being honored, but it may have a shattering financial impact on your intended beneficiaries. To protect your loved ones from unintended consequences, make sure you’ve met all legal requirements.