You know that writing a will can ensure your wishes are respected when you die. Did you know that if your will isn’t legally valid, those wishes might not actually be carried out? In these instances, the laws of intestacy will kick in and the state will decide how your assets are to be distributed.
If you’ve created a will online, we strongly recommend that you have it reviewed by an estate planning attorney here at North County Legal. There are several instances of people creating wills online or by using a template or form, but the will is not enforceable when the time comes, or it ends up doing something that the testator may not have intended.
The validity of a will depends on where you live when you die, as laws vary from state to state. Most states require wills to meet the following criteria in order to be legally binding:
You must be at least 18 years old (or an emancipated minor) to create a legally valid will.
You must be of sound mind and capable of understanding your intentions for your estate, who you want to be a beneficiary, and your relationship with those people when you create your will.
You must sign your will or direct someone else to sign it if you are physically incapable of doing so.
There must be at least two witnesses—who are not beneficiaries— present at the signing. Some states do allow for one witness to be a beneficiary as long as the other witness is not.
You may write a holographic will, which means an will that is written completely in your own hand, with no other printed material on the page. In that case, there are no witnesses required, and, in fact, having a witness would make the will invalid because there must be no other writing other than your hand on the page for a holographic will to be valid.
When a Will Isn’t Valid
If your will does not adhere to your state’s requirements, the court will declare it invalid. In this case, your estate could pass under your state’s intestacy laws. This means your assets would go to your closest living relatives, as determined by the law
Is a Will Sufficient?
A will is a baseline foundation for any estate plan, but it might not be enough to protect your wishes. A will does not keep your assets out of court, and it does not operate in the event of your incapacity. A will alone does not ensure your loved one’s receive your assets protected from unnecessary conflict or creditors.
The best way to ensure your will is legally valid is to consult with an estate planning attorney. We can confirm your will is valid under state law and evaluate your estate plan to ensure it will protect your wishes and provide for your family according to your wishes in the event of your incapacity, or when you die.