Estate Planning Guest Posts

Is Your Will Legally Valid? How Simple Mistakes Can Jeopardize Your Estate Plan

A will is one of the most important documents a person can sign, yet many adults never create one. According to AARP, only 51 percent of adults age 50 and older say they have a legal will. Even for people who have taken that step, a will is only as strong as the formalities behind it. A missing signature, the wrong witness, or a document signed during a period of confusion can lead a probate court to reject the will entirely. When that happens, state intestacy laws will decide who receives the estate, and the outcome may look nothing like what the person wanted.

Each state sets its own rules for creating a valid will, and those rules can differ in ways that surprise people. A will that meets every requirement in one state may raise questions in another. An estate planning attorney can explain the laws where you live, draft a will that satisfies each formal requirement, and oversee the signing so the document has a better chance of holding up if someone challenges it later. An attorney can also catch issues you might not think about, such as how a marriage, divorce, new child, or move to another state affects a will you already signed.

Does a Will Need to Be Witnessed?

Most states require a will to be signed in the presence of two witnesses who also sign the document. The witnesses confirm that the person making the will signed it willingly and appeared to understand what they were doing. Many states prefer or require “disinterested” witnesses, meaning people who do not receive anything under the will. Using a beneficiary as a witness can create problems. Depending on the state, that person might lose some or all of their gift, or the will might need an additional witness to remain valid.

Witness requirements do have exceptions. About half of the states in the United States recognize handwritten, or “holographic,” wills that do not need witnesses, as long as the important parts are in the will-maker’s own handwriting and the document is signed. Other states reject holographic wills altogether. A few states, such as Colorado and North Dakota, also allow a will to be acknowledged before a notary instead of signed by witnesses. Relying on these exceptions can be risky, especially for people who own property in more than one state.

Is Notarization Required for a Will?

Notarization is not required for a will to be valid in most states. A notary stamp alone does not make a will legal, and a properly witnessed will without a notary is generally enforceable. Even so, a notary can still play a helpful role. Many states allow a “self-proving affidavit,” which is a sworn statement signed by the will-maker and the witnesses in front of a notary. With this affidavit attached, the probate court can usually accept the will without tracking down the witnesses to testify about the signing. That can save your family time and expense, particularly if a witness has moved away or died.

Louisiana stands apart from other states, as its most common form of will, called a notarial testament, must be signed before a notary. A growing number of states also permit electronic wills or remote witnessing by video, though the rules for these options vary widely from one state to the next.

Is It Legal to Cut a Family Member Out of Your Will?

Disinheriting a family member is generally legal, but the rules for children and spouses are quite different. In most states, a parent can leave an adult child nothing at all. Louisiana is again an exception, as its forced heirship law protects children under 24 and children with certain disabilities. Leaving a child out by accident is also treated differently than leaving a child out on purpose. Many states have laws that protect children born or adopted after a will was signed, so stating your intentions clearly in writing can prevent a court from assuming you simply forgot someone.

Spouses usually have stronger protections than children. Most states that do not follow community property rules give a surviving spouse the right to claim an “elective share,” which is often a set portion of the estate, regardless of what the will says. In the nine community property states, a spouse generally already owns half of the property acquired during the marriage. A prenuptial or postnuptial agreement can change these rights in some situations. Some people also include a “no-contest” clause meant to discourage family members from challenging the will, but states enforce these clauses to very different degrees.

Are Oral Wills Valid?

Oral wills, sometimes called nuncupative wills, are not valid in most states. A spoken promise to leave a house to a niece, even in front of several family members, usually carries no legal weight after death. A small number of states recognize oral wills in narrow circumstances, such as when a person is facing imminent death or when a service member is on active military duty. Even then, an oral will is often limited to personal property of modest value, and an oral will generally cannot pass real estate. Many of these states also require witnesses to put the oral will in writing within a short period.

Video recordings of someone describing their wishes generally do not replace a written will either. A recording can sometimes help show that a person had the mental ability to make a will if the written document is challenged, but it is not a substitute for one. For nearly everyone, a written and properly signed will is the only reliable way to make sure their final wishes will be carried out.

What Does it Mean to Have Testamentary Capacity?

Testamentary capacity refers to the mental ability a person needs to make a valid will. In most states, a will-maker must be at least 18 years old and of “sound mind” when signing. A few states make exceptions for younger people who are married or serving in the military. To decide whether someone had testamentary capacity, courts generally ask whether the person understood they were signing a will, had a general idea of what they owned, knew who their close family members were, and understood how the will would distribute their property.

The standard for testamentary capacity is lower than many people expect. A person with early dementia, a mental illness, or memory problems may still have capacity during a period of clarity. What courts focus on is the person’s state of mind at the moment of signing, not their condition months earlier or later.