Over the next few weeks I will be going over each state specific requirements for Wills. Simple general guidelines are listed below. (*Please note that this information was obtained from nolo.com)
Requirements of You
For a Will to be legally valid, both you—the person making the Will—and the Will itself must meet some technical requirements.
To make a Will, you must either be:
· at least 18 years old, or
· living in a state that permits people under 18 to make a Will if they are married, in the military or otherwise considered legally emancipated.
Your Mental Competence
You must be of sound mind to prepare a valid Will. The laws generally require that you must:
· know what a Will is, what it does and that you are making one
· understand the relationship between you and the people who would normally be provided for in your Will, such as a spouse or children
· understand the kind and quantity of property you own, and
· be able to decide how to distribute your belongings.
This threshold of mental competence is not hard to meet. Very few Wills are successfully challenged based on the charge that the person making the Will was mentally incompetent. It is not enough to show that the person was forgetful or absentminded.
To have a probate court declare a Will invalid usually requires proving that the testator was totally overtaken by the fraud or undue influence of another person—and that person then benefited from the wrongdoing by becoming entitled to a large amount of money or property under the Will.
Requirements of the Will Document
State law determines whether a Will made by a resident of the state is valid. Additionally, a Will that is valid in the state where it is made is valid in all other states.
Contrary to what many people believe, a Will need not be notarized to be legally valid. But adding a notarized document to the Will verifying that the Will was signed and witnessed can be helpful when it comes time to file the Will in probate court. This option is called a Self-Proving Option and is available in all but a handful of states.
There are surprisingly few legal restrictions and requirements in the Will-making process. In most states, a Will must:
· include at least one substantive provision—either giving away some property or naming a guardian to care for minor children who are left without parents
· be signed and dated by the person making it
· be witnessed by at least two other people who are not named to take property under the Will, and
· be clear enough so that others can understand what the testator intended. Nonsensical, legalistic language such as: “I hereby give, bequeath and devise” is both unwise and unnecessary.
Dying Without a Will
If you die without a valid Will, money and other property you own at death will be divided and distributed to others according to your state’s intestate succession laws. These laws divide all property among the relatives who are considered closest to you according to a set formula—and completely exclude friends and charities. (see our Blog page for Intestate Succession laws by state)
These legal formulas often do not mirror people’s wishes. For example, dividing property according to intestate succession laws is often unsatisfactory if you are married and have no children, because most state laws require your spouse to share your property with your parents. The situation is even worse for unmarried couples. Except in a few states, unmarried partners receive nothing. And even in the states that offer exceptions, benefits aren’t automatic—eligible couples must register their partnerships with the state. Also, if you have minor children, another important reason to make a Will is to name a personal guardian to care for them. This is an important concern of most parents, who worry that their children will be left without a caretaker if both parents die. Intestate succession laws do not deal with the issue of who will take care of your children. When you don’t name a guardian in your Will, it is left up to the courts and social service agencies to find and appoint a personal guardian.