How To Know If Your Last Will And Testament Is Legally Binding

For your last will and testament to be legally binding, you need to ensure you adhere to the requirements of your state. [1] If you don’t, you may very well be creating a document that won’t hold up its own in court. As a result, your post-mortem wishes will not be met. Created a last will and testament or currently in the process of doing so? Learn about the things you need to know to ensure you have a legally binding will:

Requirements for Making a Will

The laws may vary slightly depending on which state you live. [2] However, common requirements and part of just about every state law regarding wills include: [3]

  • Age: Most states hold that you must be a legal adult in order to make a will. This means you will be either eighteen or an emancipated minor. Some individuals under the age of eighteen can create a will. Basically, they have gotten married, joined the military, or been legally emancipated from their parents.
  • Capacity: Of course, it’s important for you to fully understand everything as you create a legally-binding document. To go into a little bit more detail, you have to understand what you leave to others, how you are related to the beneficiaries, and why you want them to receive your property. Some individuals have been deemed to be of insufficient capacity due to illness, mental or otherwise, or other things. It’s important to note that you can create a will even if you have been or currently mentally ill. You just need to be lucid on the day you make and sign it.
  • Signature: Your will has to be signed personally by you. If physically unable to sign your own will, however, someone else can sign it under your direction. An unsigned will is probably going to be legally inadmissible. Be sure to not miss this step.
  • Witnesses: Finally, just about every state requires two objective third-parties to watch as you sign your will. They must also sign that they were present as witnesses. These individuals must not be involved with your will in any way. They must not be beneficiaries, and for the most part, they shouldn’t be related to you. There may be allowed cases sometimes, but it’s always better to have an unbiased third party.

Different Types of Wills

You may want to learn about two other types of views. First, holographic view, written by hand by the testator. A few states do not require witnesses to be present for the creation and signing of this will. [4]

Another type of will is a nuncupative will. This occasionally used will is a verbal will spoken in front of two witnesses. [5] Used only in very specific situations, such as on a testator’s deathbed. Usually, the witnesses writes the will down and submits it to a probate court as soon as possible.

The legality of holographic and nuncupative wills will vary depending on your state.


References:

1. Majette S. "Avoid Disagreements Between Your Power of Attorney Holder and Health Care Proxy". Thompson McMullen, PC. Retrieved 8 May 2017.

2. Padgalskas, Vanessa. “The Requirements for Last Wills Accepted in All 50 States.” LegalZoom Legal Info, 18 July 2016, info.legalzoom.com/requirements-last-wills-accepted-50-states-24194.html.

3. “Requirements for Writing a Will.” Rocket Lawyer, Rocket Lawyer, www.rocketlawyer.com/article/requirements-for-writing-a-will.rl.

4. “Holographic Will: Is a Handwritten Will Valid?” Legalzoom.com, 15 July 2017, www.legalzoom.com/articles/holographic-will-is-a-handwritten-will-valid.

5. Jenks, Stuart Dixon. “Nuncupative Wills.” Cornell Law School, 1895.


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Disclaimer: The author, the publisher and the vendor of these forms makes no representations or warranties regarding the outcome or the use to which these forms are put and are not assuming any liability for any claims, losses, or damages arising out of the use of these forms. The user should not rely on the author or the publisher of these forms for any professional advice. Always consult with a lawyer regarding the rules and regulations governing your residing state/province. The information provided is for illustrative purposes only and not for the purpose of providing legal advice. You should contact an attorney to obtain advice with respect to any particular issues and concerns related to the drafting of wills and other legal documents. Remember that individual situations and estate planning needs differ, and this Kit may not be suitable for your specific circumstances. Kit may vary upon receipt.
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