A written last will and testament is a legal document, and will be accepted by a probate court as long as it meets all the requirements for a valid last will and testament in the state where the court sits. You may write your own will, or you may have a lawyer draft one for you.
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A legal document is a document that has the power to affect legal proceedings or to affect a person's legal rights, according to the American Bar Association Task Force on the Model Definition of the Practice of Law. A last will and testament falls under this definition, as it affects the rights of those who would otherwise take a deceased person's estate if no will existed.
As of 2010, a written will is a legal document in all 50 states, and the probate courts in each state will accept a written will that meets that state's requirements for wills. Most states will also accept as valid a will that was valid in the state where it was written, even if the will is not valid under the laws of the first state. A written last will and testament has to be signed by its maker and by at least two witnesses in nearly all cases, regardless of which state's probate court it is filed in.
Written Wills Without Legal Force
Many documents may appear to be a person's last will and testament, and yet have no force as legal documents because they do not meet the legal requirements for written wills. For instance, many attorneys keep an unsigned and unwitnessed copy of clients' wills for reference only. While these documents describe themselves as last wills and testaments, and may even have been prepared by a lawyer, they are not valid legal documents unless they are signed and witnessed according to state law. A copy of a will cannot replace an original as a legal document.
Some states recognize oral wills in addition to written wills. However, in order to be admitted to probate, an oral will must be written down by someone who witnessed the speaking of the original oral will. The oral will itself is not a legal document, but can be made into a legal document by being placed in writing. Similarly, many states will accept holographic wills, which are legal documents written entirely in the handwriting of the person making the will. These wills are often excepted from the witnessing requirements of state law for other wills.
References & Resources
- Federal Trade Commission: ABA Task Force on the Model Definition of the Practice of Law
- Indiana Legal Services: Proposed Rule on Brief Services
- Federal Register: Drafting Legal Documents
- Washington DC Probate Courts: Guide to Probate
- Cornell University Legal Information Institute: Probate
- Ohio State University: Estate Planning Considerations
- Stockbyte/Stockbyte/Getty Images