Legal Requirements for a Valid Will
A will is what many people think of when they first consider estate planning. This makes sense. Everyone should have a will, whether or not they engage in more extensive planning. And many people decide that a will is all the planning they need, at least for the time being.
A last will and last testament is simply a legal document in which you name the people, typically family and friends who will receive your property after you die.
Typically, you name:
- Beneficiaries who are going to receive specific property left to them
- Alternate beneficiaries, to receive property left to any direct beneficiaries who die before you do, and
- One or more residuary beneficiaries (and alternates), to receive all property not left to other beneficiaries under your will.
Another added benefit of a will is that it can also be used to appoint a personal guardian to raise your young children.
You can name whomever you want as beneficiaries of your will property.
And if your situation calls for it, you can use your will to establish a child's trust, or custodianship.
Wills do have a few technical requirements, but not as many as you might fear; you can readily master the technicalities.
Although most people know what a will is, at least in a general sort of way—something to do with property after a death—I've had a number of people tell me they don't really understand what a will does, how it works, or what it requires. For example, they wonder if a will has to be typed.
And isn't there something about witnesses? Must a will be notarized? Filed with some judicial agency? Prepared with a valid stamp? Must there be gobs of legalese in a will? Isn't it inherently dangerous to try to prepare a will without using a lawyer?
Here are short answers to each of these questions:
- Yes, a will should be typed but there are exceptions.
- Yes, you must have at least two people witness your will.
- No, it does not have to be notarized.
- No, it does not have to be filed with some judicial agency—as long as you're alive.
After you die, a will, unlike a living trust must go through a court proceeding called probate. No stamp or other official imprimatur is required. And, no, a will doesn't have to be gorged with legalese. Finally, for most people, there is no danger in preparing a will without a lawyer.
Though there aren't many formalities necessary to prepare a valid will, you do have to be sure your will complies with what is required. The problem here is that you can't rely solely on common sense. You must know the rules.
Here are all the legal requirements for a valid will:
- You must be at least 18 years old.
- You must be "of sound mind." (The fact that you can read and understand this book is sufficient to establish that you are.)
- The document should be typed using a typewriter or computer. This is required in about half the states, and safest in all.
- The document must state that it is your will.
- You must leave some property to at least one beneficiary and/or appoint a personal guardian for any minor children.
- You must sign and date your will.
- There must be at least two witnesses who watch you sign your will and then sign it themselves. They do not have to know its contents.
While there's no requirement that a will be notarized, you may decide to use a notary when your will is signed and witnessed. In most states, having the witnesses sign a brief statement called a "self-proving" affidavit, which is then notarized, can eliminate any need for a witness to testify at subsequent probate proceedings.
There are no appearance requirements for a will, beyond that it be legible.
Physically, a will really is nothing more than some paper with typing or printing.
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