How to Ensure a Will Is Valid
Any adult who is of sound mind can make a will. There is no standard format for a will, nor does a person need to use an attorney. But to be valid and stand up against court challenges, a will needs to meet certain requirements. Some of these vary by state.
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Instructions
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Meeting age requirements. In nearly all states, a person must be 18 years old or older to make a will. Louisiana has a minimum age of 16 and Georgia allows people as young as 14 to make wills.
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Being of sound mind. This means that the person making the will understood what she was doing when she created and signed the will. To fulfill this requirement, it has to be clear that the will maker knew what he owned; was aware of current and former spouses, children and other family members; understood who is generally provided for in a will; understood what a will is designed to do; and was able to make reasoned decisions about how his property should be distributed after his death. The will maker isn't obligated to provide for spouses, children or other family members. But if he doesn't, it should be clear that he did so with understanding and awareness.
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Not being handwritten (in most cases). This is called a holographic will. In about half the states, such wills are not valid. Where holographic wills are accepted, they must be written and signed by the will maker. Some states require that a holographic will be dated. Some states allow a person to use a preprinted form with blanks as long as the form is completed, dated and signed by the will maker. Where holographic wills are accepted, they don't need to be witnessed. Even in states where holographic wills are valid, courts will use extra care in evaluating the will.
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Signing in the presence of at least two witnesses. The witnesses don't need to read the will. They must, however, actually see the will maker sign the will. In most states, a person who gains anything from the will cannot serve as a witness to it. It is not necessary to have the signing and witnessing notarized. Doing so, though, sometimes makes court procedures after the will maker's death simpler.
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Basic content elements. There are no standard words or structure for a will. Every state has rules about the most basic things a will has to have. The three most common requirements of a will's contents are 1) a statement that it is the will of its maker, 2) at least one major provision, such as a clause leaving property to an individual or appointing a guardian for a minor child, and 3) the appointment of an executor to see that the terms of the will are fulfilled after the will maker's death. If the will doesn't appoint an executor, it doesn't always invalidate the will. The courts usually appoint an executor.
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Accessibility to the executor. There is no requirement that a will be filed or recorded with a government agency. It does need to be kept in a safe place where the executor can get to it in the event of a death. This includes a fireproof safe at home, a lawyer's office or a safe deposit box. Remember that in some place a safe deposit box is sealed after a death until certain legal requirements have been met.
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Tips & Warnings
Wills generally don't involve complicated legal questions. It is not necessary to go to an attorney to have a will drawn up. To be valid, a will has to meet the requirements of the state in which its maker lives most of the year. Information about wills and estate planning is usually available from local bar associations.
If a person dies without a will or other way of legally transferring property, the state will decide what happens to the property. Generally, the property goes to a spouse or children. If there are none, property usually goes to close relatives. If a person has no heirs, the state takes the property.
