How to Ensure a Will Is Valid

By Anaid Heyd

A will is a formal document that allows you to decide how your estate should be managed and distributed after your death. Every state has various requirements to ensure a will is valid and executed in the manner intended by its creator. Failure to follow state laws can cause beneficiaries to lose inherited property or may cause a legal will to be completely invalidated. You can take certain precautions to ensure your will is valid.

A will is a formal document that allows you to decide how your estate should be managed and distributed after your death. Every state has various requirements to ensure a will is valid and executed in the manner intended by its creator. Failure to follow state laws can cause beneficiaries to lose inherited property or may cause a legal will to be completely invalidated. You can take certain precautions to ensure your will is valid.

Step 1

Verify that you have met your state's legal will age requirement. Most states have a legal age requirement of 18 years, but other states have a lower age requirement. Georgia, for example, requires testators to be at least 14 years of age.

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Step 2

Hire an attorney. Attorneys are not required by law, but they can help ensure that your will has all the necessary provisions and is executed according to state law. They can also help relieve stress during the creation process. According to the American Bar Association, 85 percent of Americans hire attorneys to help prepare legal wills.

Step 3

Typewrite your legal will. Many states already have this requirement because it helps prevent confusion, forgery or unwitnessed amendments. Oral and handwritten wills are accepted only under limited circumstances.

Step 4

Videotape yourself reading and signing the will to help prove that you are of sound mental capacity. Every state requires that testators be of sound mind, capable of reasoning and understanding the implications of a legal will. Although the person does not need to be declared mentally incompetent by a court, courts may allow evidence and testimony from disgruntled relatives to prove that the testator's judgment was impaired through conditions such as undue pressure or debilitating sickness. A videotape may help discredit such presumptions. The tape, however, may not replace an actual written will.

Step 5

Include a substantive provision in your will indicating your intent in making the document your final word on what becomes of your property and that you understand the severity and implications of the decision. The provision helps further the mental capacity condition and establishes your intent in clearing any ambiguities caused by external factors such as unofficial or implied promises.

Step 6

Gather the necessary witnesses to sign and witness the legal will. Every state requires a different number of witnesses. California, for example, requires at least two witnesses; New Hampshire requires three witnesses. Try to include one more witness than the minimum requirement. The more witnesses you have, the more validity you can add to your will. Some states prohibit using a will beneficiary as a witness, also known as an interested witness. Interested witnesses may cause others to contest the will believing that the testator was unduly pressured or coerced and therefore not of sound mind when he created the will. Avoid this scenario by using only disinterested witnesses.

Step 7

Arrange to have a notary present during the signing of the legal will. Having a notary can help provide a disinterested witness as well as credibility in the eyes of the judge. Notaries are public officers sworn to their duties, so their inclusion can add validity to the document.

Step 8

Sign and date the self-proving affidavit. The self-proving affidavit is a section in the will that helps guarantee the testator is signing the document before witnesses, who will in turn also sign the document. In some states, the self-proving affidavit might eliminate the necessity for witnesses to testify to the will's validity if the will is contested. Affidavits are useful when a witness has died or is unavailable and the court needs someone to verify the legitimacy of the will.

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The Requirements for Last Wills Accepted in All 50 States

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Is a Notary Needed for a Will to Be Legal?

The requirements of a valid will are determined by state law. Usually a will is subject to the laws of the state in which it's executed, and most other states will also recognize the will's validity, with some limitations, if it would have been valid where created. Generally, a will needs to be witnessed, but not necessarily notarized.

How to Break a Will or Probate

Probate is court-supervised administration of a testator's last will and testament. Upon the death of the person making the will, the executor files the will in probate court and begins to gather and inventory estate assets. Although the executor is usually selected by the testator and named in the will, the court reviews the procedure to assure honesty, accuracy and fairness. The court only approves a valid will, so anyone wishing to "break" a will or probate must allege and prove facts making the will invalid.

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States impose few restrictions on who can make a will -- any adult who is of age and able to reason qualifies. Testators in some states can disinherit spouse and children, as long as they use clear language, however many community property states require that a spouse get a share of the property. States are picky about executing wills, and the term "execution of a will" actually describes how a will must be signed. Consulting with an attorney can ensure that the process is handled correctly, and in accordance with state laws.

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