What Makes a Will Legal & Binding?

By Cindy DeRuyter, J.D.

What Makes a Will Legal & Binding?

By Cindy DeRuyter, J.D.

A last will and testament is a common and important component of the estate-planning process for most people. It serves multiple purposes, including nominating a guardian for minor children, nominating a personal representative or executor to administer your estate, and documenting your wishes about how to distribute assets. Laws governing wills are state-specific, so it is important to understand your state's requirements and make sure you comply with applicable laws.

Woman in pink fluffy sweater signing document

Capacity to Create a Will

You need to have legal capacity to be able to create a will, which generally means you are at least 18 years old and have the mental capacity to sign it. Different states interpret mental capacity in different ways, but it generally means you are conscious and aware, not under the influence of mind-altering substances, and not signing under threats, duress, or coercion.

Some states also interpret mental capacity as the ability to understand what you are signing, to understand what your assets and possessions are, to understand what the disposition of those assets are, and to understand the effect of not signing it.

Common Legal Formalities

You also need to ensure that your will complies with your state's required legal formalities. One of those requirements is that it must be signed.

In many states, witnesses who are at least 18 years old must watch you sign your will and then sign attesting that they watched you execute it. Some states' laws specify that the witnesses cannot be named as beneficiaries, so use caution before you ask a family member to sign as a witness. Most states require two witnesses for signings, but certain states require three witness signatures.

Your state's laws may also include a requirement for a notary public's signature.

Understand What Wills Control

Your last will and testament should specify how assets will pass at your death. However, understand that this does not mean all of your assets are controlled this way.

If you own real estate, bank accounts, investment accounts, or other property as joint tenants with someone else, those assets pass to the other joint owners outside of your will. Similarly, retirement accounts, life insurance policies, and any other assets where you've named one or more beneficiaries pass by contract.

Including these assets during your draft doesn't make the will invalid, but it likely becomes ineffective because such assets do not pass through in this way.

Make Your Will Binding

In some states, only typed and printed wills are valid. Other states accept holographic wills, which are entirely in the handwriting of the testator. States generally do not accept oral wills because of the difficulty in proving their validity.

If your will does not meet state-specific requirements, your executor or personal representative may not be able to honor your wishes. In addition, if it's considered invalid, it can create unnecessary frustration for your loved ones.

Some people prefer to hire an estate planning attorney to help them prepare and execute these important documents. However, you may choose to create your own will instead. As long as the specific state requirements are followed, your last will and testament should be valid.

This portion of the site is for informational purposes only. The content is not legal advice. The statements and opinions are the expression of author, not LegalZoom, and have not been evaluated by LegalZoom for accuracy, completeness, or changes in the law.