The Legal Requirements for a Will

As you begin the process of creating your Last Will and Testament, you have the opportunity to customize this document for your specific instructions and wishes. However, there are some legal requirements you must adhere to in every state.

  • Minimum Age Requirement
  • Intent of the Testator
  • Capacity of the Testator
  • Required Signatures and Witnesses

Minimum Age Requirement

Regardless of your resident state, the minimum legal age to create a Last Will and Testament is 18 years old. There are some exceptions. There are some exceptions, such as Georgia, where the minimum age is 14. While some states may allow emancipated minors to create a will, other states like Arkansas and California still require individuals to be at least 18 years old to make a legally binding will.

Special circumstances may be permitted by the courts, especially if the minor in question has a large estate from an inheritance. 

Intent of the Testator

Every Last Will and Testament must begin with a clearly stated intention by the testator (the person creating the will) of the reason for the document. Your will must include the phrase “This is the last will and testament of [your name]” in order to be legally recognized by the court. Without that specific wording, the document is not legally considered a will. 

This requirement is in place to protect you from being unduly influenced into giving away your estate. It helps ensure the next requirement concerning the mental capacity of the testator. 

Capacity of the Testator

Regardless of your state of residence, the law requires you to show you are of sound mind when creating a will. This is another legal requirement put in place to protect the testator against manipulation and theft.

Being of “sound mind” means, at the time you create and sign the will, you are fully aware of what you are doing. Even if you have been diagnosed with diseases that could impair your judgment such as dementia or Alzheimer's, you can still sign a will. It may be smart to include a letter from your doctor stating you are within the medical necessity to make decisions regarding your will. 

Required Signatures & Witnesses

For your Last Will and Testament to be legally valid, you must sign the document. You are required to have at least two legal adult witnesses who can verify your mental state, and show that the document is your will.

If for any reason, the will is later contested, the witnesses may be called to verify the validity of the document and the signature of the testator. Including a Self-Proving Affidavit may help your loved ones avoid any unnecessary delays regarding your estate. A Self-Proving Affidavit is a form to validate your signature verified by you and your witnesses under oath. 

Most states may require witnesses that are not involved in the will such as an attorney or a notary public. These parties are known as “disinterested witnesses.” Although some states like Massachusetts and California allow “interested” witnesses to sign a will, there might be a comforting sense of neutrality if you choose individuals who have no particular stake in your estate. 

Invalid Wills

If any of the previously discussed legal requirements for your Last Will and Testament are not met, the document may be considered invalid. If this happens, the probate court may revert to a previously signed will (if it exists) or go by state intestate succession laws. Your estate would then go to your closest and most direct relations. 

Following the law when creating a will is highly important. Not only so your final requests and instructions are honored, but also to ensure your estate is distributed as you see fit. 

Other Types of Wills

While a traditional printed Last Will and Testament is the most common, there are a few other kinds of wills also accepted by the court. 

A handwritten will, also known as a holographic will, is completely handwritten and signed by the testator. Witnesses are not required, but the age, intent, and capacity rules still apply. At least two disinterested witnesses may be called to authenticate the will maker’s handwriting.

An oral will is similar to a deathbed confession. An oral or spoken will is not generally accepted in most states, except under limited circumstances, such as an imminent threat of danger, or the spoken will of soldiers in warfare.

A video will is slightly more widely accepted than an oral will, but still may not be considered valid in states that require the document to be written or printed. The upside of a video is it shows proof of the testator’s intent and mental capacity.

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