Finding a loved one’s will can provide a great sense of relief and direction. A will gives instructions on who will handle the decedent’s estate and how to distribute their assets. But if the will isn’t valid, it’s not much help. To determine registered will validity, you must look at your state’s legal requirements.
How Do You Prove Registered or Unregistered Will Validity?
First, you need to find the will. For family members, this can be quite a challenge. People put their wills in all kinds of places, from lawyer’s offices to safe deposit boxes. Start by looking online at the probate court’s website to see if they have a record for your loved one’s will.
You can also search with The U.S. Will Registry to check if your loved one, or their attorney registered their will. Too often a will is finally located, and then realized that it is not the most recent will written. Registration of a will in The U.S. Will Registry documents the location (attorney, home, institution or person) holding the Testator’s Last Will or Trust.
Second, once you locate the will, turn the will over to the probate court if they don’t already have it. In some states, it’s a crime not to give a will to the probate court if you’re in possession of it.
Third, the executor, or person applying to be the executor, of the estate must file a petition to probate the estate. As part of the probate process, a judge will decide whether the will is valid.
What Are the Requirements for a Will to be Valid?
Each state has its own requirements for making a will valid and enforceable. However, in general, a will is valid if:
- The person who created the will (the testator) had requisite mental capacity,
- The will is in writing,
- The testator signed and dated the will, and
- Two witnesses attested to the testator’s signing.
A will doesn’t have to be registered for it to be valid, but it certainly helps when trying to locate it. Let’s take a closer look at the general requirements for a valid will.
The Testator Must Have Legal and Testamentary Capacity to Create a Will
Here is a further look at each basic requirement of a will to be valid.
Legal capacity
Typically, a testator has the legal capacity to make a will if he or she is at least 18 years old. Some states make an exception for testators who are married or are members of the U.S. Armed Forces.
Testamentary capacity
Testamentary capacity means a person is of “sound mind.” If you can understand the following, then you have the testamentary capacity to create a will:
- The purpose and effect of the will you’re creating,
- The type and amounts of property you own,
- The members of your family,
- The fact that you’re transferring assets, and
- How to form a plan based on the relation of each element listed above.
The testator needs testamentary capacity only at the time of signing and not before or after.
Testamentary Intent
Testamentary intent means that the testator intended to create the will.
Proving testamentary capacity and intent can be difficult and is often the grounds for contesting a will. Family members or other interested people may argue that the testator wasn’t of sound mind when the will was signed, making it invalid.
The Will Must Be in Writing
A written will includes one that’s typed or printed.
A handwritten, or holographic, will is a will written entirely by the hand of the testator and signed but that has not been witnessed or notarized. These wills are subject to different requirements under the law. Not all states recognize holographic wills, and they can be difficult to prove.
When determining registered will validity, the probate court closely scrutinizes wills that are both self-printed (lacking possible clauses and terminology required for a will to be valid) and handwritten.
Testator Must Sign and Date the Will
A will must be signed and dated by the testator. This includes having a person sign the will for the testator if he or she is unable to do so. With the advances of technology, courts typically honor electronic signatures.
Two Witnesses Must Attest and Sign the Will
Two people must witness the testator’s signature. There are statutory requirements for who can be a valid witness. Typically, a witness must be an adult and competent. In some states, those who have the right to inherit something under the will cannot serve as a witness.
Does Registered Will Validity Require Notarization?
Most states don’t require wills to be notarized. Some testators include a self-proving affidavit with their will. This is a sworn statement signed by the testator and both witnesses in front of a notary, attesting that the testator signed the will. This document makes the probate process much easier and quicker because it eliminates the hassle of proving the testator created and signed the will.
What Happens If a Will Is Invalid?
If a judge finds the will to be invalid, the court will distribute the testator’s estate according to intestate succession law. Every state has its own version of intestate succession. There’s a predetermined order of people who can inherit assets from the estate based on their relationship to the decedent and whether they’re still alive.
For example, the surviving spouse is typically the first person in line to inherit anything. If the decedent and surviving spouse had children, then any surviving children will also get a portion of the estate. If neither the spouse nor children are alive, then the decedent’s parents inherit, then the decedent’s siblings, then aunts and uncles, and so on.
Let The U.S. Will Registry Help You Find Your Loved One’s Will
Locating a loved one’s will is the first step in carrying out their wishes. It can be incredibly frustrating when you’re unable to find the will, but we can help. At The U.S. Will Registry, we have access to a national database of registered wills submitted by individuals. attorneys, nursing facilities, as well as attorneys since 1997. Wills are dated back as far as 1967. With a simple search, we may provide information on the location of the will, whom to contact, and any other estate planning documents.
With a simple search using the decedent’s name, birthdate, and state, The U.S. Will Registry may have exactly what you’re looking for.
