What Makes a will legally binding?
A Will is one of the most important legal documents you’ll ever create. It dictates how your assets will be distributed after you pass away, ensuring your wishes are respected. However, for a Will to be legally binding, certain requirements must be met. These requirements vary slightly from state to state, but the core principles remain the same across the US.
Basic Requirements for a Legally Binding Will
For a Will to be considered legally binding in the US, it generally must meet the following requirements:
- Legal Age
In almost every state, the person creating the Will (the testator) must be at least 18 years old. However, some states make exceptions for younger individuals, such as those serving in the military. - Sound Mind
The testator must be mentally competent, meaning they understand the extent of their assets, who the beneficiaries are, and the consequences of their decisions. - Written Format
The Will must be in writing. Some states accept handwritten (holographic) Wills, while others require them to be typed. - Signature of the Testator
To finalize the Will, the testator must sign the document, demonstrating their intent to have the Will taken effect. - Witnesses
The testator’s signature must be witnessed by at least two competent adults, who must also sign the Will to validate it. It is best practice for the witnesses to not be beneficiaries of the Will.
How to make a Will valid in multiple states
If you move to a different state after drafting your Will, it’s crucial to ensure your Will remains legally valid. Each state has its own rules for what makes a Will binding, and some may have additional requirements that weren’t considered in your original document.
Key Tips for a Cross-State Valid Will:
- Follow the Most Stringent Requirements:
Some states have more rigorous requirements (e.g., notorization or additional witness signatures). If you plan to move or think you might, follow the most stringent requirements across multiple states to avoid complications. - Use Self-Proving Wills:
A self-proving Will, where a notary public certifies that the testator and witnesses sign the Will, is valid in nearly every state. This step can help your Will avoid being contested, no matter where you relocate. - Review State Laws Regularly:
Regularly review your Will if you move states, especially regarding witness requirements and notarization. Will Hero’s AI Assistant can help you with answers to questions like this. - Consult Local Legal Advice:
While Will Hero can meet your legal requirements in your current State (except Lousianna), it’s wise to consult an attorney if you are planning to move to ensure your Will remains valid.
Witnesses vs Notary Public: What's the Difference?
One key point of confusion is the difference between having witnesses sign a Will and having it notarized. Both steps help ensure the authenticity of the document, but they serve different purposes.
Witnesses
Most states require two witnesses to sign the Will. These witnesses are there to confirm that the testator signed the Will voluntarily and was of sound mind at the time. They don’t need to know the contents of the Will but must be present during its signing.
Notary Public
A notary public is a third-party professional authorized to authenticate legal documents. They verify the identity of the testator and the witnesses, providing an additional layer of protection against future disputes. Although notarization is not a legal requirement in most states, it can be helpful, particularly when making the Will “self-proving.”
A self-proving Will allows the court to accept the document as valid without needing the witnesses to testify. This is especially useful if the witnesses are unavailable or have passed away by the time the Will is executed.
- Pros of Using a Notary Public:
- Self-Proving Will: If your Will is notarized, it becomes a “self-proving” Will in many states. This allows the court to accept the Will as valid without requiring witnesses to testify later, speeding up the probate process.
- Added Legal Protection: A notarized Will is more difficult to contest since the identity of the testator and witnesses has been verified by an impartial party.
- Cons of Using a Notary Public:
- Cost: Depending on your location, notary fees range between $10 and $50, though the cost can be higher for specialized notary services.
- Accessibility: In some areas, it can be challenging to find a notary, especially for those in remote locations.
You can find a notary at your local bank, law office, or online through mobile notary services. While Will Hero does not directly provide notary services, you can choose to have your Will notarized independently after it’s created, or simply have it witnessed.
At Will Hero, we give you the flexibility to choose between just witnesses or organizing a public notary yourself, depending on your needs and state requirements.
State-by-State Differences
While the basic principles of Will creation are the same across the US, each state has its own specific rules. Below is a breakdown of key differences:
|
State |
Witnesses Required |
Notary Required |
Holographic Wills Accepted |
|
Alabama |
2 |
No |
No |
|
Alaska |
2 |
No |
Yes |
|
Arizona |
2 |
No |
Yes |
|
Arkansas |
2 |
No |
Yes |
|
California |
2 |
No |
Yes |
|
Colorado |
2 |
No |
Yes |
|
Connecticut |
2 |
No |
No |
|
Delaware |
2 |
No |
Yes |
|
Florida |
2 |
No |
No |
|
Georgia |
2 |
No |
No |
|
Hawaii |
2 |
No |
Yes |
|
Idaho |
2 |
No |
Yes |
|
Illinois |
2 |
No |
No |
|
Indiana |
2 |
No |
Yes |
|
Iowa |
2 |
No |
No |
|
Kansas |
2 |
No |
Yes |
|
Kentucky |
2 |
No |
Yes |
|
Louisiana |
2 |
Yes |
Yes |
|
Maine |
2 |
No |
No |
|
Maryland |
2 |
No |
No |
|
Massachusetts |
2 |
No |
No |
|
Michigan |
2 |
No |
Yes |
|
Minnesota |
2 |
No |
Yes |
|
Mississippi |
2 |
No |
No |
|
Missouri |
2 |
No |
No |
|
Montana |
2 |
No |
Yes |
|
Nebraska |
2 |
No |
No |
|
Nevada |
2 |
No |
Yes |
|
New Hampshire |
2 |
No |
No |
|
New Jersey |
2 |
No |
No |
|
New Mexico |
2 |
No |
Yes |
|
New York |
2 |
No |
No |
|
North Carolina |
2 |
No |
No |
|
North Dakota |
2 |
No |
Yes |
|
Ohio |
2 |
No |
Yes |
|
Oklahoma |
2 |
No |
Yes |
|
Oregon |
2 |
No |
No |
|
Pennsylvania |
2 |
No |
No |
|
Rhode Island |
2 |
No |
No |
|
South Carolina |
2 |
No |
No |
|
South Dakota |
2 |
No |
Yes |
|
Tennessee |
2 |
No |
Yes |
|
Texas |
2 |
No |
Yes |
|
Utah |
2 |
No |
Yes |
|
Vermont |
2 |
No |
No |
|
Virginia |
2 |
No |
Yes |
|
Washington |
2 |
No |
No |
|
West Virginia |
2 |
No |
Yes |
|
Wisconsin |
2 |
No |
No |
|
Wyoming |
2 |
No |
Yes |
Conclusion
When you have followed the basic requirements above for your state, your Will is considered legally valid. Any will can still be challenged in court, however having a legally valid Will that is recognized in multiple states is the best way to ensure your final wishes are followed. Whether you opt for witnesses or a notary, Will Hero is here to help guide you through the process.
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