According to a recent survey, 60% of people in the US do not have a will or a plan to make one.
Accidents happen and you do not want to leave your loved ones with nothing. But your will must be legally binding if it is to be enforced.
You are no lawyer, though, so it can be difficult to determine whether your will is enforceable in a court of law.
Is your last will and testament legally binding? Here are 4 questions to ask yourself.
Do You Have Witnesses?
Perhaps the most important part of making your will legally binding is having witnesses. In most states, you are required to have at least 2 witnesses, while some states require 3.
Additional witness requirements include:
- Witnesses must be disinterested parties, meaning they are not named in your will
- Witnesses must be 18 or older
- The lawyer who drafts your will cannot be a witness
Some states, including Massachusetts and California, allow you to invite witnesses who are named in your will. Further, some states allow you to execute a legally binding will in the complete absence of witnesses. Make sure you know what your state requires.
Are You of Sound Mind?
You must be of sound mind when you sign your will for it be enforceable by law. Being of sound mind implies that you were not coerced into creating the document. It also means that you can understand what you are signing away upon your death–and who you’re signing it away to.
Keep in mind that this requirement does not rule out individuals who currently suffer or have suffered from mental illness. As long as witnesses can attest to your lucidity during the making and signing of your will, it will be legally binding.
Have You Signed?
For your last will and testament to be legally binding, it must contain the testator’s signature. Your signature must be in your own handwriting and appear at the very end of the document. Additionally, you should date the document as the day you added your signature.
If you are physically incapable of adding your signature to your will, no worries. You can have someone else sign your will in your place. But some courts will require notarization via witnesses to prove the alternate signatory acted in good faith and with your permission.
Are You 18 or Older?
You must be 18 or older to file a legally binding will. However, emancipated minors may file a will. Emancipation usually applies to individuals of 16 or 17 years of age and implies that you are no longer dependent on your parents.
Other exceptions to this rule may apply to:
- Individuals younger than 18 who are married to a partner who is 18 or older
- Individual younger than 18 who joined the military
- Individuals younger than 18 who are of positive net worth and own considerable assets
None of these exceptions apply to you? Then you will have to wait until you turn 18 or file for emancipation from your parents to file a legally binding will. Unless you live in Georgia or Louisiana, where you can file a will if you are under the age of 18.
Where to Make Your Last Will and Testament
Do not want to take the risk of a last will and testament that is not legally enforceable? You need an estate planning attorney who understands your needs.
Contact us today to schedule a consultation.