The Requirements for Last Wills Accepted in All 50 States

By Vanessa Padgalskas

Laws regarding last wills vary slightly among all states, but in general, a will must meet certain requirements to be valid. A will is not guaranteed to be valid in all states because each state and its probate courts may apply the law differently and have different requirements. A will should be property executed so the testator's intent can be implemented upon his death.

Testator Requirements

The testator is a legal term for the person who creates a will. In general, a testator must be 18 years of age to create a will. In addition, a testator must have testamentary intent and the capacity to make a will. Testamentary intent simply means the testator intends to create a will and dispose of his property through the will. A sentence at the beginning of the will that states the testator's name and his intent to create the will may satisfy the testamentary intent requirement. Testamentary capacity means the testator is of sound mind and has the mental ability to make a will. These requirements help ensure the testator was cognizant of what he was doing when making a will and his purpose was to make a will. In addition, the testator must make his will voluntarily; he must not be unduly influenced, forced to make his will under duress, or subjected to fraud or misrepresentation when making his will. The testator's intent to make a will is called into question when the testator was fraudulently induced by someone else to make a will.

Will Made in Writing

A majority of states require a will to be in writing, which means it is typed and printed rather than made orally or by recording. Although not a legal requirement, the will should also clearly revoke all other wills and codicils previously made by the testator to avoid confusion when the will is probated.

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Signed by the Testator and Witnesses

The will must be signed by the testator in the presence of two witnesses. A majority of states will not accept a will unless it is signed at the bottom by the testator. Two witnesses must also sign at the bottom of the will in the presence of the testator. Many states require that the witnesses are disinterested -- which means they do not benefit by the will. Furthermore, the witnesses cannot merely sign the will; they must attest to the will -- which means they know what the document is and that the testator intends it to be his last will.

Self-Proving Will

Some states require that witnesses sign an affidavit, which is a sworn statement attached to the will. A will with an affidavit attached is called a self-proving will. A will must be proven during probate, which means that a court must find that the will meets all the requirements. Attaching an affidavit to the will prevents the witnesses from having to attest to the will during probate. An affidavit must be signed by the witnesses and notarized. The affidavit typically states the testator was of sound mind when creating the will and signed the will.

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Montana Law Governing Last Wills & Testaments



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