Every adult should have a will. A will makes sure that your property goes where you want it to go, and makes the transition process easier for everyone. Even if you are relatively young, a will can provide insurance against an accident or an injury that leaves you unable to communicate your wishes. This article will outline the typical legal requirements for both formal and informal wills. However, since the exact requirements vary from state to state, you should still check your local law or consult an attorney.
A formal or “attested” will can be used in any state to distribute your property at death. Legal requirements include mental capacity and a written document that is signed, witnessed, and dated.
Mental Capacity. Generally, you have to be 18 years old before you can write a will. In addition, you must be mentally competent. This means that you understand what you are doing with your property, and that you are not giving things away for delusional reasons.
Written Document. The will must be in writing, and the document must clearly be a will. Usually, the title “Will and Testament” makes it clear that you are writing a will.
Signature and Date. Your will must be signed and dated. The signature shows that the will is what you want, and the date shows that the will was made when you were mentally competent.
Witnesses. You should have two people watch you sign the will. These people should not be receiving anything in the will, or they might otherwise be seen as having a conflict of interest. The witnesses should then sign the will as well. Their signatures are to show that you are not being forced to sign the will, and that your signature has not been forged by someone else.
An informal or "holographic" will can be used in many states to distribute your property as well. Legal requirements include mental capacity, intent to make a will, and a handwritten document that is signed.
Mental Capacity. The age and mental competence requirements are the same for informal wills as they are for formal wills. However, this requirement can become more of an issue if the holographic will is not dated, which is generally not required. If the will is not dated, then it is possible that the person writing the will was mentally incompetent at the time it was signed (if the person was ever mentally incompetent). In that case, the will may be considered invalid. To avoid this problem, you should always date your will.
Intent to Make a Will. Since holographic wills are informal, there is sometimes a question whether the writer actually intended to make the document a will. This can be true for letters and notes written to friends. A will should have the “Will and Testament” title, or use legal language, such as, “I intend to make this my final will and testament, and I revoke all prior wills.”
Handwritten Document. An informal will should be written in your own handwriting. A handwritten document shows that you know what the will says, and that you want your property to be distributed exactly as you described. If you type the document, a judge will see it as a formal will that lacks witnesses, and it will be invalid. Finally, do not forget to add your signature at the bottom.
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