A will is a legal document because it grants rights to the will's executor and beneficiaries. However, a will is only a legally valid instrument if it meets criteria as defined by state law. A will that fails to adhere to such criteria may be deemed worthless in a state court. Therefore, when preparing your will, it is essential to familiarize yourself with the laws of your state or have an experienced attorney draft the document.
Generally, every state requires the person making the will, called the testator, to be over the age of 18 and of sound mind. You are considered “of sound mind” if you comprehend that you are making a will, have knowledge of your assets and property, and are able to recognize the persons that would normally be expected to share in your estate. The testator is usually presumed to be of sound mind at the time of the will’s making, so anyone claiming that the testator was not of sound mind bears the burden of proof.
Distribution of Assets
Most states place some restrictions on how you can divide your property. For example, many states prevent the surviving spouse from being disinherited, and allow the spouse to take either one-third or one-half of the estate no matter what you bequeathed her. Some states also have explicit laws on the manner in which you can disinherit a child, though only one state -- Louisiana -- forbids a parent outright to disinherit his offspring.
To be legally valid, wills in every state must be signed by the testator. Some states require witnesses to observe the signing of the will, while other states require the testator to “acknowledge” the will’s signature by declaring, in the presence of witnesses, that the document is your last will and testament and that the signature on it is yours. Certain states may have other requirements with respect to the signature, so you must verify all requirements in this regard.
Most states require two witnesses to sign the will -- Vermont requires three. The purpose of the witnesses is to affirm that you are of sound mind and are not making the will under duress. The witnesses must sign the will in your presence as well as in the presence of each other. In most states, witnesses cannot be beneficiaries under the will. In certain states, a witness can be a beneficiary if she agrees to give up her share of the inheritance.
Most wills are either typewritten or printed documents. While handwritten wills are legally valid in some states -- and oral wills are valid in very limited circumstances -- printed wills are less vulnerable to challenge. Video wills are also legal and are useful for proving mental competency, but in most states cannot substitute for a written will.