What are Will Formalities?
Creating a will and estate plan can be beneficial for both you and your heirs, but in order to have a legally recognizable will, certain steps must be taken in order to validate its contents. Known as will formalities, these procedural steps ensure that your will is made legally under the law and minimizes the chances of issues like mental capacity, undue influence, or fraud from impacting your final wishes for your estate. An experienced estate planning attorney is well versed in will formalities and is your best option for ensuring that all steps are taken to create a legal will that reflects your desires for your estate after you pass away. Call or contact an estate planning attorney in your area today to learn more.
All states have their own requirements for what makes a will valid, but all states require the following formalities to be met in order to have a legal will that can be submitted to probate:
- Legal Age: In order to have a valid will, you must be of legal age. Most states consider this to be 18 years old, but some will make exceptions if a person is already married or a member of the military at a younger age.
- Testamentary Capacity: You must also have the testamentary, or mental, capacity to create a will. This means that you must understand that you are creating a will and the effect of that document. You must understand the nature and extent of your estate in addition to knowing that you are disposing of your assets and to whom.
- Intent: Closely related to testamentary capacity, you must also have the intent to make a will at the time of the signing of the document, which is signing a document that creates a revocable disposition of property at your death.
- Voluntary Signing: The signing of the will must be done voluntarily and not be coerced. A will signed under duress is considered invalid and void.
- Proper Disposal of Property: The disposition of property must also be proper, which means that the will contains a list of all property and assets in the estate along with how it will all be distributed to beneficiaries and heirs.
- Signed, Dated, and Witnessed by Two Non-interested Parties: Finally, the will must be signed, dated, and witnessed by two non-interested parties in the will. In order to be a non-interested party, the witnesses must not personally benefit under the will as heirs or beneficiaries.
Failure to abide by will formalities can result in your will being deemed void and tossed out of probate court. This can mean that an older version of the will is submitted as the true distribution of the estate, or if no older version exists, then your estate will be distributed according to your state’s intestacy laws. Because of this, it is critical that you secure the services of an experienced attorney who can help you through every step of legal will formalities.
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To learn more about will formalities as well as other substantive and procedural issues that may arise in the drafting of a will, call or contact us.