Family discussing what makes a will legal

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What Makes a Will Legal - Everything You Need to Know

What makes a Will legal is an understandable question to ask when setting up your Estate Plan. Luckly, we’ve broken down everything you need to know.

Patrick Hicks

Patrick Hicks, @PatrickHicks

Head of Legal, Trust & Will

A common misconception when it comes to Wills and Estate Planning is that an attorney must be present to make your document legally binding. In reality, writing a Will is much simpler than it may seem — especially with the Estate Planning services offered at Trust & Will. With our help, you can start the process of creating a legal Will as soon as today. 

But, you may still be wondering: without an attorney, what makes a will legal? This is actually dependent on a few factors which we will discuss below. Continue reading to learn more about

How to Make a Legal Will

The first step in creating a legal Will is waiting until you are 18 years old, unless you live in Georgia or Louisiana (where you can be 14 and 16, respectively). After you reach this age, it is a good idea to start thinking about a Will to make sure your loved ones are taken care of after your death. A Will can include your end of life wishes and designate where your assets and belongings go. 

Once you are ready to get started, there are a few rules on Will legality to be aware of:

  • You must have the mental capacity 

  • You must have intent

  • The Will must be in line with your state’s laws

Have the Mental Capacity

You have probably heard the old proverb, “of sound body and mind” at some point or another. This phrase comes into play when creating a legal Will, as you must be of “sound mind” in order to write one. For a Will to be legal, you have to be aware of what you are doing, what you own, and where you are leaving your belongings while you create the document. 

An important note to make is that even those with dementia or Alzheimer’s can be considered of sound mind, so long as they are aware of their actions at the moment of signing. This rule is meant to protect individuals from being taken advantage of as they create a Will. If there are concerns, a doctor’s note can typically serve to establish the person in question’s mental capacity. 

Have Intent

An important component in what makes a Will legal is whether or not the document specifically states its purpose. Intent means including direct language that the document you are creating should serve as a Will. Wills typically include a variation of “as my Last Will and Testament” to explicitly state what they are. This requirement means any notes or letters stating one’s wishes do not count as a valid Will. If you were to write a letter leaving your house to your sister, without saying it was your Last Will and Testament — the letter would not count as such. 

fStates are actually allowed to set different laws on what makes a Will legally binding. These can range from how many signatures are required to whether or not a handwritten Will is legal. A few specifications to keep in mind when writing your Will are the number of required witnesses, if beneficiaries can serve as witnesses, and other signing requirements. Always double check with state laws when writing your Will to ensure its validity. 

Will Legality - Commonly Asked Questions

The basic requirements on what makes a Will legal are simple enough: sound mind, explicit intent, and mindful of state-specific laws. However, that still leaves a few details on the legality of a Will unsaid. Read through the following commonly asked questions for more information: 

Is a Handwritten Will Legal?

A handwritten Will is legal in about half of all U.S. States. While handwritten Wills are technically legal in these states, they can still present challenges during the probate process. Those who opt for a handwritten Will may want to line up witnesses who will be able to verify their handwriting, in case the authenticity of the Will is called into question. 

What is a Holographic Will?

A Holographic Will is simply another way to say a handwritten Will, and again is only legal in certain states. These Wills often have different witness and signature requirements, so always check with your state’s laws. 

Does a Will Have to be Notarized?

Wills have to be notarized depending on the state you live in, though it can be helpful no matter where you live. In some cases a notarized Will can help make sure a witness does not have to be present in court. 

What if my Will is Invalid?

If a Will is invalid one of two things will happen: a previous Will can be used or your state’s intestate laws will be applied. If at any point in time you created another legal Will, that would come into play if your current Will was deemed invalid. When there is not a previous Will, state law will intervene. These laws will vary, but typically your assets will transfer to your closest relatives. It should be noted that these legal proceedings could have negative effects on your Estate and assets.

The purpose of a Will is to make sure your end of life wishes are followed, and to ease the transfer of assets to your loved ones. If you go through the emotional labor of thinking through these decisions, it is always smart to make sure they are properly written down. What makes a Will legal varies from state to state, but it is never impossible to figure out. If you have any questions we didn’t answer: Reach out to us today or Chat with a live member support representative! 

Ready to create your Will with Trust & Will so that your children and assets are protected? Get started today!


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