Movies, television and books tend to showcase wills in fairly dramatic ways – handwritten notes, videos, deathbed utterances – but what actually makes a will valid? The law varies depending on what state you live in, but there are some basic rules that remain consistent over state borders.
The legal requirements for a will are fairly simple. To make a will valid, you must first know what property you have and what it means to leave it to someone. Next, you need to sign and date the document, with a witness being present (make sure to check the terms of witness laws in your state). Most states require two people to watch you sign the will, and then they must sign as witnesses. Usually one of the witnesses can be the lawyer who drafted the will, but most states do not allow beneficiaries under the will to serve as witnesses.
Some states allow you to make a handwritten will, which is called a “holographic” will. This will does not need to be witnessed, but it is much more likely to be challenged after you pass away. Some states require that the entire will be in your own handwriting, while others call for just the important portions to be written in your handwriting. The writing must indicate your intent to make a will and clearly describe the property being given away. Some states require the will to be dated and signed.
Very few states allow an “oral” will (referred to as a “nuncupative” will). The states that allow this type of will have very specific requirements in order for it to be valid. For example, Indiana only accepts an oral will if it is made by someone in serious or imminent danger of death who then passes away as a result of the same peril. States may also require two witnesses, as well as requiring that the will be reduced to writing soon after the declaration. There may also be limitations to the amount of property that someone can leave behind with an oral will.
Video wills are not recognized as a form of will in any state. States may recognize a video will as a valid oral will if it meets all the requirements, but a video by itself is not a valid will. However, using video to record a will signing can be a smart measure to prevent a will contest. A video recording of the will signing allows your family members and the court to see that you are freely signing the will. Also, it becomes more difficult to argue that you did not have the requisite mental capacity to agree to the will when video proof exists.
The best way to make sure your will is considered valid is to consult with your attorney. If you are in the State of New Jersey and would like to discuss anything pertaining to your will or estate, our team at Willis Law Group LLC is here to provide you with any assistance that you may need. To schedule a consultation, we encourage you to attend one of our free educational workshops throughout New Jersey or give our main office a call at (877) 296-2575.
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