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What are the requirements for a will to be valid?

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A

The requirements to make a valid will vary by state, but you generally need to be at least 18 and of sound mind, potentially also needing two witnesses as you sign. Getting your will notarized isn’t necessary but may be a good idea.

Derek Silva

Derek Silva

Published August 25, 2020

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Each state has its own laws on what makes a will valid, so you should always double check with state law to ensure you meet all the requirements. One universal rule is that the person creating the will, the testator, must sign it. Typically, signing your will must also be witnessed in some capacity, but how many witnesses you need and who qualifies to witness depends on your state.

For a state-by-state breakdown of will requirements, read our guide to making a will in your state.

Age requirements for a will

In many states you need to be at least 18 years old to write a valid will, but you can write a will as young as 14 in some states. States may also allow emancipated minors to write a will. Regardless of your age, you may be able to make a will in some states if you’re married or a member of the armed forces.

Mental state required to sign a will

You also need to be of “sound mind” when you sign your will, though each state may use a slightly different term or definition for what constitutes being of sound mind. The general idea is that you must be creating the will of your own volition and you must be mentally able to understand what you’re doing by signing the will. You may also see this referred to as testamentary capacity. For individuals who are mentally incapacitated, there are likely limits on when they can create a will or who can legally create a will for them.

At the same time, your will is only valid if it contains language explicitly stating that the document is your last will and testament. This is referred to as testamentary intent.

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Witnesses needed for a will

Many states — though not all — require you to have witnesses when you sign your will. Pennsylvania is one state that doesn’t require witnesses. The most common requirement is for two witnesses to sign your will, but who’s eligible to witness depends on where you live.

Your witnesses often need to be at least 18 years old and of sound mind, but exact language varies. One state may say you need “credible witnesses” while another says you need witnesses who are generally competent. Witnesses generally must understand their duty, which is that they are witnessing the signing of will, and that they may be called by a court in the future to testify to this fact.

Commonly, your witnesses should be “disinterested” parties, meaning they aren’t your beneficiaries and won’t receive material gain by having you create this will. It may be possible for a beneficiary to serve as a witness, but in many states they may have to forfeit some or all of their inheritance if there aren’t any disinterested witnesses.

Related article: How to witness a will

Holographic wills

A handwritten will is called a holographic will. A holographic will is often valid as long as it follows the rest of the requirements for your state, like having your signature and having been properly witnessed. A handwritten will that isn’t signed by witnesses may not be recognized by your state. Getting the will notarized may help it to be proved in court during the probate process.

Contents of your will

Your will should name your beneficiaries and the property or other assets you want each beneficiary to receive. While you can name just about any person, business, or organization as a beneficiary, you may have a difficult time writing certain individuals out of a will, like a child or your spouse (especially if you live in a community property state, where your spouse automatically owns half your estate.)

If you need to write someone out of your will, you may want to seek legal advice from an estate planning attorney.

You should also name an executor — the person who will be in charge of carrying out the terms of the will after you die. If your will doesn’t name an executor, the probate court will appoint a personal representative to handle the duties. However, if you would feel more comfortable with someone specific handling your estate, naming an executor should be a priority.

Should you notarize your will?

It isn’t necessary to notarize a will as long as you follow the rest of your state’s laws to create a valid will. However, wills must be proved in court before their terms can be carried out. You can speed this process along by including a self-proving affidavit, which must be signed by two witnesses in the presence of a notary.

Having a self-proved will can also help prevent someone from contesting your will, which happens when someone challenges its authenticity, perhaps because they want different assets than what is bequeathed to them in the will.

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About the author

Personal Finance Expert

Derek Silva

Personal Finance Expert

Derek is a tax expert at Policygenius in New York City. He has written about multiple personal finance topics in the past, and his work has been covered by Yahoo Finance, MSN, Business Insider and CNBC.

Policygenius’ editorial content is not written by an insurance agent. It’s intended for informational purposes and should not be considered legal or financial advice. Consult a professional to learn what financial products are right for you.

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