What Makes a Will Valid?
Much of what we think we know about wills might be from dramatic media portrayal in movies, television, or books. However, these might not always show what is needed to make a valid will, especially when what makes a will valid can vary between states.
So, what exactly makes a will valid, and how can this vary?
To start, it’s necessary to know what property you have and what it means to leave it to someone(s) and sign and date a document that is witnessed according to your state’s specific laws. In most states, the law requires two witnesses who also sign this document. Typically, one of these witnesses can be a lawyer who has drafted the will, but neither witness can be a beneficiary in the will.
There are some states that allow you to make a handwritten will – also known as a holographic will – which does not require witnesses but can more likely be challenged after you die. For this type of will, some states require that the entire will be written in your handwriting, while others require that only important parts be in your handwriting. Additionally, only certain states require that it be dated and signed. However, in all cases, your writing must be clear about your intent to make a will and clear in your description of the property being given away.
Finally, there are few states that allow an oral will (which is called a “nuncupative” will), and these types of wills have very specific requirements that vary by state. Indiana only accepts this type of will when made by someone in imminent peril of death who then dies as a result of that peril. Some states require there to be two witnesses who then put the will in writing shortly after it is spoken. There might be a limit, too, of the amount of property that can be willed to others this way.
No states recognize video wills, although a video will might be recognized as an oral will if it meets that state’s specific oral will requirements. Using video to record a will signing can also serve to prevent a will contest.
The best way to make sure your will is considered valid is to consult with your attorney. Contact us at Wilson and Wilson Estate Planning and Elder Law, LLC, 708-482-7090 or wwilson@wilsonwilsonllc.com
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