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You’ve probably heard the saying, “Death is the great equalizer.” It’s a morbid thought, but it’s true. No one is immune to death and no one knows when their time will come.
That’s why it’s so important to have a legally binding will in place.
A will ensures that your wishes are carried out after you die, regardless of your social status or net worth.
But not just any will do. In order to be legally binding in most states, a will must meet certain criteria.
In this article, we’ll take a look at the seven essential elements of a valid will.
Keep in mind that we recommend speaking to an attorney if you have specific questions about your own will. But this article will give you a good overview of what to expect.
Capacity
Making a will is a serious business. In order for it to be legally binding, you need to be of sound mind and in full possession of your faculties when you make it.
This means that you can’t be coerced or unduly influenced by others, and you must be fully aware of what you’re doing.
You also need to be aware of the conditions that must be met for a will to be valid.
These include being over the age of majority, making the will in your own handwriting, and signing it in the presence of two witnesses.
Legality
Your will must be legal in order to be valid. This means that it must meet the specific conditions set out by your state or province.
For example, in Michigan, a will must be in writing, signed by the testator (the person making the will), and witnessed by two people who are not beneficiaries.
There are other requirements as well, such as the inclusion of an attestation clause and a self-proving affidavit.
An attestation clause is a statement confirming that the witnesses saw the testator sign the will, while a self-proving affidavit is a sworn statement from the witnesses that they witnessed the signing and that they believe the will to be valid.
If your will doesn’t meet all of these requirements, it may still be valid, but it could be subject to challenge.
This is why it’s important to speak to an estate lawyer to make sure your will is legal and meets all of the requirements in your jurisdiction.
Intent
The most important condition for a valid will is that it must be made with the intent to dispose of property after death. Y
ou must be of sound mind and body when you sign your will, and it must be clear that you are intentionally making a will.
If you change your mind after signing your will, or if you’re coerced or forced into making one, the will is no longer valid.
And finally, don’t forget that a will must be in writing and signed by you in order to be legally binding.
Formality
It’s important to remember that a valid will must be in writing.
As you’ve probably heard, “oral wills” are not legally binding, so don’t even think about using it as an option.
Furthermore, typically the writing must be signed by either the testator (the person whose will it is) or the witnesses of the will’s signing.
Also, if there are any witnesses to the signing of the will, they should also provide a signature and include their address.
Some countries have special statutory formats for wills but in most countries, provided all other essential elements are included, it doesn’t matter how you word your will, as long as your intention is very clear.
Ultimately though, whatever document you choose it should be clear and unambiguous and comprehensive enough to cover all possible contingencies, such as what happens in case one of your intended beneficiaries dies before you do.
Witnesses
The fifth must-have element for a valid will is witnesses.
Ideally, you should have at least two witnesses (one is acceptable in some states), who are not mentioned in the will and are of sound mind.
The witnesses should be present when you sign the will, and both should watch you sign it, then sign as well.
A witness cannot be someone who stands to gain from your will. In other words, a witness can’t benefit from your passing in any way, which usually means excluding close relatives.
It’s important to note that most states do not require the will to be notarized, but some do.
Check with an estate planning attorney in your state to find out the requirements for executing a legally binding will where you live.
Free and voluntary
The sixth essential element of a legally binding will is that it be made freely and voluntarily.
This means that the testator must not have been coerced, tricked or manipulated into making the will in any way.
The will must have been done of the testator’s own free will and choice.
If circumstances leading to the will being made are challenged, then judges look at all circumstances surrounding execution of the will and decide if it was made in a free and voluntary manner.
For example, if someone threatened a testator to make a will, or promised something in return for making it, then this skews their decision-making process, destroying their freedom to choose.
For this reason, if you feel you are being unduly influenced to make a will, it is best to speak to someone who can guide you through it who is impartial and has no conflict of interest.
Proper execution
To make your will legally binding, it must be properly executed. That means making sure that all the signatures are done correctly.
Generally speaking, state laws require that the testator signs the document in front of at least two witnesses, and both witnesses must sign as well.
In some jurisdictions, a notary public may also need to be present to witness the signing of the will.
An online will program should provide instructions on what information is needed for each state, and how to correctly execute the document.
The most important thing is that you complete all steps correctly so that the document is legally valid and enforceable when you pass away.
Taking a few minutes now to get everything in order can make a big difference later on down the line.
Will and Estate Planning Attorney in Washington, DC.
As a family law lawyer in Washington DC, I have seen firsthand the emotional toll that the loss of a loved one can take on a family. That’s why it’s so important to ensure that your wishes are clearly stated in a legally binding will. Take action now and contact Us!