Is Your Current Will legally Valid?

Posted by Larissa Drohobyczer | Apr 15, 2021 | 0 Comments

I remember just a few months ago a woman came in who was 102 years old. That was my oldest client ever. She showed me he currently will and it was done all wrong. It had no witnesses and was only notarized. Luckily she came to see me to fix it. A last will and testament can ensure your wishes are respected when you die. But if your will isn't legally valid, those wishes might not actually be carried out, and instead the laws of “intestate succession” would apply, meaning that the state decides who gets your stuff, and it's very likely not to be who you would choose.

If you've created a will online, we congratulate you for doing SOMETHING, but we strongly recommend that you have it reviewed and make sure it does what you want, and is actually legally valid. We've seen it far too many times: someone THINKS they've created a will, because they did something, but the SOMETHING was the WRONG THING, and their family is left to deal with the fallout, confusion and complications that result.

The validity of a will depends on where you live when you die, as last will and testament laws vary from state to state. Most states, however, require wills to meet the following criteria in order to be legally binding:

 

The Essential Requirements

  • You must be at least 18 years old or an emancipated minor to create a legally valid will.

 

  • You must be of sound mind and capable of understanding your intentions for your estate, who you want to be a beneficiary, and your relationship with those people when you create your will. 

 

  • You must sign your will or direct someone else to sign it if you are physically incapable of doing so.

 

  • There must be at least two witnesses—who are not beneficiaries— present at the signing. Some states do allow for one witness to be a beneficiary as long as the other witness is not.

 

Handwritten Wills

You may write a holographic will, which means an will that is written completely in your own hand, with no other printed material on the page. In that case, there are no witnesses required, and, in fact, having a witness would make the will invalid because there must be no other writing other than your hand on the page for a holographic will to be valid.

 

When a Will Isn't Valid

If your will does not adhere to your state's requirements, the court will declare it invalid. In this case, a few things could happen. Your estate could pass under your state's intestacy laws, which means your assets would go to your closest living relatives, as determined by the law. And that may or may not be who you would want to receive your assets.

Is a Will All You Need?

A will is a baseline foundation for any estate plan, but it might not be enough to protect your wishes. A will does not keep your assets out of court, and it does not operate in the event of your incapacity. A will alone does not ensure your loved one's receive your assets protected from unnecessary conflict or creditors.

 

The best way to ensure your will is legally valid is to consult with a Personal Family Lawyer®. We can confirm your will is valid under our state's laws and evaluate your estate plan to ensure it will protect your wishes and provide for your family according to your wishes in the event of your incapacity, or when you die.

 

About the Author

Larissa Drohobyczer

Larissa Drohobyczer's practice focuses on estate planning, probate, fiduciary litigation, and personal injury. Her estate planning practice focuses on helping families and business owners secure their futures.

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