Is a Written Will a Legal Document?

By Barbara Diggs

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.

Preliminary Conditions

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.

Protect your loved ones. Start My Estate Plan

Signature

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.

Witnesses

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.

Form

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.

Protect your loved ones. Start My Estate Plan
Contesting a Will as a Beneficiary

References

Related articles

Handwritten Last Will & Testaments

Each state has its own laws on what constitutes a valid last will and testament. In most states, a will must be in writing, but whether it is typed or handwritten generally doesn't matter if the will meets all the other requirements for validity in the state. About half of states, however, recognize a special type of handwritten will.

Legal Will Information

A last will and testament is a legal document detailing the manner in which you want your possessions disposed after your death. Even though you may not want to think about such matters, creating a will is a wise thing to do. If you die intestate, meaning without a will, a court will distribute your property according to state law. Having a valid will can ensure that your assets will be divided in the manner that you view as fair.

North Carolina Laws Regarding Wills

Every state has its own specific statutes when it comes to wills. A will that doesn’t comply with North Carolina’s laws is generally void, and North Carolina will dispose of your property according to rules of inheritance, giving it to your most immediate kin regardless of your intentions. If you write your own will, it is always advisable to use an attorney to review it before you assume it to be valid, according to North Carolina’s statutes.

LegalZoom. Legal help is here. Start Here. Wills. Trusts. Attorney help.

Related articles

Last Will & Testament of the Terminally Ill

Because a last will and testament disposes of property when someone dies, courts are careful to make sure that a will ...

Reasons to Contest a Will

It is not enough to be unhappy with the way the property of an estate is distributed in a will to contest its validity, ...

Can a Power of Attorney Sign a Will?

A power of attorney grants one person the legal authority to act on behalf of another for certain purposes, which are ...

Is a Hand-Written Notarized Will Legal?

Your will can direct the distribution of your property after your death, name someone you trust to manage your estate ...

Browse by category
Ready to Begin? GET STARTED