Legal Wills are Last Will And Testaments that have met and satisfied state laws and are enforceable. The article below explains a number of the legal requirements. More informative articles, ebooks, and forms on Legal Wills, Last Will, and Last Will And Testament are linked to www.LastWillAndTestamentSite.com.
What Makes A Last Will And Testament Legal?
There are limited circumstances when a Last Will And Testament may be a legal Will even though it is a verbal statement or a handwritten, unwitnessed statement. This article does not deal with those circumstances. Rather, this article deals only with normal, standard, written Last Will And Testaments (also referred to as Will, Last Will, etc.).
First, let's look at what is not required for a Last Will And Testament to be a legal Will.
- There is not a specific or required form. A Legal Will can simply be a statement, it can be like a letter, or it can in a legal form. The form or format used doesn't matter.
- There are not any specific words that must be used, but it must be clear that the person making the Last Will means for it to effective upon his or her death. You can say "upon my death", "when I die", or any similar wording. Simply saying "I give to ... " will not work nor will it be legal because it sounds like a present gift and not a gift that is to be effective upon death.
- There is not any requirement that an attorney must draft a Last Will And Testament for you. However, it is a good idea to use an attorney because not all property is covered by a Last Will and state laws may change your wishes expressed in your Last Will And Testament.
- A legal Will does not need to be notarized by a Notary Public. In the past, for a Last Will And Testament to be admitted to probate and determined to be a legal Will and valid, a witness had to sign a statement that he or she was present and watched the maker sign the Last Will. To save witnesses from having to sign such a statement, states adopted what are commonly known as "Self Proving Wills" whereby the Last Will is notarized by a Notary Public at the same time that the maker and witnesses sign it. Having a Last Will notarized does not affect whether or not the Last Will is legal. Notarizing merely helps witnesses when the maker dies.
- There is not any requirement that a Last Will And Testament be recorded or filed at the Court House before the death of the person making the Last Will. In fact, most states do not have any procedures for recording or filing a Last Will of someone who is still alive. Some states do allow for people to record or file their Last Will at the Court House before their death, but the recording or filing is not required to make the Last Will legal. A legal Will is just as legal whether or not it is recorded or filed before a person's death.
Next, let's look at what is required for a Last Will And Testament to be a legal Will.
- As mentioned above, it must be clear that a document is intended to become effective upon the maker's death and not a present gift.
- To be a legal Will, the person making the Last Will And Testament must be eighteen (18) years old or older, he or she must be making his or her Last Will voluntary, and he or she must be competent.
By law, children cannot make a Last Will And Testament. So a Last Will made by someone under eighteen is not legal or valid.
While it may sound obvious that a person must make his or her Last Will voluntarily, not everyone makes his or her Last Will vountarily. It is rare, but there are times when a person may be coerced or forced into making a Last Will or a person may be under the undue or excessive influence of another person to make a Last Will. To be legal, a Last Will And Testament must be made by someone free of coercion and undue influence, it must be voluntary.
A person must be competent by law to make his or her Last Will. Basically, a person must know and understand what he or she is doing. A Last And Testament will not be a legal Will if it is made by a person who has dementia or some other mental condition that inhibits him or her from knowing that he or she is making a Last Will.
- A legal Will must be signed by the person making the Last Will and it must also be signed by two or three competent adults who were present and witnessed the maker sign the Last Will. Most states require two witnesses, but some states require three witnesses. The witnesses must not be named in the Last Will.
The above information is general information only. For specific questions or clarification, contact a lawyer licensed in your state.
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