Last Will and Testament Formalities: Is It Valid?
A last will and testament is only worth the paper that it is written on unless, of course, it is valid. Although each state has its own list of formalities that must be observed in order to ensure that the document is legally binding, many of these requirements are the same across states. If the last will and testament is not valid, it will not be legally binding on the heirs.
Basic Requirements to Establish the Validity of a Last Will and Testament
Each state follows certain basic requirements to establish the validity of a last will and testament. Without the presence of each one, the document will not be legally enforcing. Some minor variation might exist from one state to another on a particular specification.
The individual who is making a will must meet a minimum age requirement. Typically, the person must be 18 years of age or older. The only exception to this rule comes into play when the individual has emancipated minor status.
The signing of the will must generally be handwritten by the individual creating the will or handwritten by another individual at his request. Certain cases exist where this requirement might be altered.
Not only must the will be signed in handwriting, but each state also designates the exact location of the signature. Typically, the will must be signed at the very bottom of the document in most cases.
In order for the will to be valid, the individual creating it must be of sound mind and body. This translates to mean a person who has clear thinking and normal mental capacity.
The will maker must have a clear idea of who his heirs at law are in order to create a valid will. He must also have a good understanding of his net worth at the time that the will is created.
Specific requirements are in place as to the number of individuals who must be present when the last will and testament are signed. In general, two witnesses must be present in order for the document to be valid. Additionally, the witnesses need to be 18 years of age or older in most states. Moreover, certain other restrictions are also in place in most states regarding the witnesses. This includes the fact that the witnesses must not be related to the creator of the will. Nor must they be named as fiduciaries or beneficiaries.
When is a Last Will and Testament Not Valid?
If basic requirements to establish the validity of a last will and testament discussed above are not met, then the document is not valid and it will not be binding on your heirs. This includes each and every requirement or formality that the state has set in place in order to create a legally binding document. When this type of situation occurs and the document is determined not to be valid, two different scenarios can come into play.
If the individual who created this last will and testatment that is not valid had a prior will in place, then the estate will be disbursed according to the terms of the previous will. If no prior will has been in place, then the estate will be disbursed according to the intestacy laws of the particular state where the individual lived at the time of his death. In either case, the terms of the invalid will are usually different and therefore, they are not met. It is for this reason that special care should be taken to ensure the validity of a last will and testament by completing each of the basic requirements discussed above.