When it comes to creating a Last Will and Testament, it's very important for you to observe all of the formalities required by the laws of your state in order to make the Last Will legally valid and binding on your heirs at law.
State Laws Govern the Validity of Wills
Each state has very specific requirements that are necessary to make a Last Will and Testament legally enforceable:
- How old you must be to make a valid Last Will (usually over the age of 18 or an emancipated minor);
- The mental capacity you must have to make a valid Last Will;
- An understanding of your net worth and who your heirs at law are;
- How you must sign the Last Will (usually in your own handwriting or by another at your specific direction);
- Where you must sign the Last Will (usually at the very end of the document); and
- Who must be present when the Last Will is signed (usually in the presence of at least two witnesses).
Special Types of Wills
Aside from a formal written Last Will, some states allow you to create a "Holgraphic Will," or "Olographic Will," meaning a Last Will that is entirely in your handwriting or created on a computer and is signed and dated by you but not witnessed or notarized. Other states also allow you to create a "Nuncupative Will," meaning a Last Will that is spoken in front of two witnesses. Refer to What Are the Different Types of Last Will and Testaments? to learn more about this subject.
Who Can Serve as a Witness to a Last Will?
Most states require that the witnesses to a Last Will must be over the age of 18. Some states require that the witnesses must be unrelated to the Testator and/or not a beneficiary of the Testator's estate, while others allow the witnesses to be relatives, named beneficiaries, and/or named fiduciaries.
What Happens if the Formalities of Signing a Will Aren't Followed?
If you fail to follow all of the state specific formalities for signing a Last Will and Testament, then your Last Will won't be legally valid and binding on your heirs at law. If this is the case, then one of two things can happen:
- If you didn't have a prior will, then your estate will pass under the intestacy laws of the state where you live at the time of your death; or
- If you did have a prior will, then your estate may pass under the terms of the prior will. The final answer depends on whether the prior will was validly executed and what state law provides.
What Are the Grounds for Contesting a Will?