A Will is a final act that ensures that your legacy is protected, and that it’s rightfully passed on to loved ones. At Trust & Will our priority is in helping you create a Will (or, of course, a Trust) that is as comprehensive, protected, and legally binding as possible. To do so, it’s good to know what makes a will invalid (and what makes a Will legal) so that you can avoid common mistakes and pitfalls.
It would be terrible if your partner or children's accessed the Will that you left behind, only to find that it’s invalid. In another scenario, what if they were suspicious that there was some foul play? Make sure you know the 8 most prevalent ways that can make a Will invalid, so you can make sure that yours is safe, secure, and will deliver as intended.
1. Creating Your Will Without Any Witnesses Present
If you create a handwritten Will without any witnesses present at the time of signing, it could be invalid in some states. This type of will is commonly known as a “holographic” Will, and is an alternative to a Will that is produced by a lawyer.
Be sure to double-check whether or not a Will signed without any witnesses present is valid in your state. Even if it is accepted in your state, there are still specific requirements that need to be met in order for it to be considered valid. We recommend it’s better to be safe than sorry, and to create your Will through a legitimate entity, such as a lawyer, or a service like those offered by Trust & Will.
2. Creating Your Will Without Proper Witnesses Present
It’s also important to touch on who counts as a proper witness. In most states, a “proper” witness is an individual over the age of 18. Most states also require that there are two or three proper witnesses present.
They must physically witness the Will being signed, and in addition, they must attest that the person signing the Will was sound of mind. This goal of this is to have multiple witnesses who can corroborate that you signed the document willfully, with sound mind, and that there was no manipulation involved.
3. Not Including All Assets in Your Will
Although not including all assets won’t necessarily invalidate a Will, it can certainly dampen its effectiveness. Make sure to boost the overall effectiveness, and thus validity, of your Will be creating an exhaustive checklist of all of your assets.
These assets might come in the form of finances, property, or even personal belongings. Of course, you don’t need to include those old socks that no one in your family would care about. However, give careful consideration even to personal belongings that might hold sentimental value for someone in your family. After all, these are precious items to remember you by. This helps demonstrate how a common notion that Wills are only for the wealthy is a myth. When it comes to sentimental value and memories, we are all rich. Take care of the hearts and well-being of your loved ones by being super thorough in your Will.
4. Not Including Clear Directions in Your Will
A powerful Will includes clear and concise directions for a multitude of possible scenarios that could happen. For example, you could include instructions with your wishes in case you were to become medically or otherwise incapacitated. Or, you could include directions for how you’d like your end-of-life celebrations to be carried out.
Regardless of what the scenario could be, your loved ones will be endlessly thankful if you include clear directions. This is especially true when they are trying to carry out a stressful responsibility while they are navigating the grieving process. Omitting clear directions won’t necessarily invalidate a Will, but it will certainly leave a lot of confusion. Make sure to protect your loved ones, and help ensure your wishes are carried out correctly, but including clear and concise instructions for likely scenarios.
5. Not Following Your State’s Will Provisions
In this article, we’ve already come across a few examples of provisions that vary from state to state. One of them was whether or not a holographic will is considered valid, depending on the state. Another of them was the definition of a proper witness, and how many must be present.
Every state has provisions and preferred language on how a Will should be written and validated. Do make sure to follow them! Not following your state’s exact Will provisions is probably one of the quickest ways to invalidate your will. If you haven’t already, make sure your Will is compliant with your state’s requirements. This is especially true if you have moved or plan to move.
Generally, all states require at least the following:
A document that is your last Will and testament
A list of which of your assets will be inherited by whom
The name of your executor, power of attorney, etc.
6. Will Is Not Up to Date With Legal Rights
Have your legal rights changed recently? If you’re not sure, here are some common changes that will impact your legal rights:
Getting a divorce
Legally separating from a partner
A change in financial circumstances, such as a bankruptcy
The death of one of your beneficiaries, or your spouse
Additions to the family, such as children or grandchildren
If any of the above scenarios apply to you, it’s a good idea to work with a professional to update your Will. You want to make sure your Will is always up-to-date within your legal rights, which is a framework that shifts over time, and through life events. It would be truly unfortunate if your Will were to come into play, and it were invalid because you never had it updated.
7. Not Destroying Previous Wills (or Drafts)
This point is all about proper document management. When you are working with multiple versions of your Will, or drafts of your Will, things can get confusing and complicated quickly. Make sure that your most up-to-date version of your Will is valid by destroying any copies of previous versions of your Will, including drafts.
This is important because you’re eliminating any possibility that a previous version of your Will is found and used, unintentionally. Help your loved ones out and make sure the correct version of your Will is the one they’ll find!
8. Questionable Testator Competence
A common reason that Wills get challenged in legal courts is based on an accusation that the testator capacity was insufficient.
The “testator” is a term describing the individual creating and signing the will. There must be reasonable belief that the testator has mental competency. In other words, did the person have a sound mind when creating and signing their will?
Some states require that testators take a basic competency test, in order to be eligible to create a will. The test will ask the testator questions to make sure they have a solid grasp on personal information, such as:
What property they own
Who their relatives are, including name and relationship
Relationship with beneficiaries that were chosen
What the will says and means
If you are worried about dementia, Alzheimers, or other types of impairments, know that it’s still possible to create a Will. You can work with a professional or attorney to provide proper documentation.
This also opens up a great discussion on how you should not wait to create a Trust or Will. You are never too young to do so, and it will help ensure that your mental competency isn’t put into question.
How to Make Sure You Create a Valid Will
As you may have gathered, there are a number of pitfalls that can quickly invalidate a Will. We provided 8 of the most common examples, but there are many more. Knowing what makes a will invalid is super important. We suggest working with a trusted partner, such as an attorney or online provider like Trust & Will. These professionals will help you navigate what can be a tricky system and help simplify your life. Further, they will advocate for you and make sure that your Will is legally binding, safe, and secure.