One of the executor’s first jobs is to find the will, if any, left by the deceased person. That may be quite a challenge in itself. But once you’ve found a document, how do you know whether or not it’s valid and will be accepted by the probate court?
The final decision on validity will be made by the court. But you can make your own preliminary determination about the document—and then either relax because there don’t appear to be any problems, or get ready for a possible challenge to the will.
The following requirements have to do with how the will was executed—that is, how it was signed and witnessed. Wills can also be challenged in court if there are questions about whether or not the will-maker had the mental capacity to make a valid will or whether someone exerted undue influence on the will-maker. For more on those issues, see How a Will Can Be Contested (Challenged).
A will must satisfy three basic requirements to be a legally binding document.
Generally, of course, wills are composed on a computer and printed out. (Older ones might have been typed on a typewriter.) It’s possible, however, to have a valid will that is entirely handwritten.
Confusion can come when there is a mixture of handwriting and pre-printed language—as can happen if someone uses a fill-in-the-blanks form or crosses out language on a computer-printed will. It may be impossible to tell who made the changes or when they were made, and a court is not likely to enforce them.
A will must be signed and dated by the person who made it. If the will-maker wasn’t physically able to sign the document, it is permissible for the will-maker to have directed someone else to sign it, in front of witnesses. It’s also common, but not required, for the will-maker to have signed or initialed each page of the document.
Most people sign with pen and ink, but as electronic signatures become more common, they may show up on wills. A small handful of states now allow electronic wills, which are wills kept in electronic form and have electronic signatures. Even without a state law allowing electronic wills, a few courts have allowed them. For example, in Tennessee, a man created his will on his computer, and then had his two witnesses watch as he added a cursive signature to the on-screen document before printing it out. The court accepted the the will. Similarly, an Ohio court accepted a will that had been signed on a tablet and later printed out.
Witnesses are crucial. They watch the will-maker sign the will, and then sign the document themselves, stating that the will-maker appears to be mentally competent and isn’t being unduly influenced by anyone. In all states, witnesses must be legal adults. The witnesses must be aware that the document is intended to be a will. Just two states, Colorado and North Dakota, allow a will to be notarized instead of witnessed.
Many states, but not all, require witnesses to be people who don’t inherit under the will. Some states even preclude beneficiaries’ spouses from serving as witnesses. If an interested person is a witness in a state that doesn’t allow it, then that person won’t be allowed to inherit anything under the will. The other provisions of the will, however, will remain valid.
The one big exception to these basic rules is that in about half the states, a will that was not witnessed, but was entirely handwritten and signed by the will-maker, is valid. It must be clear that the document was intended to be a will. The legal term for this kind of document is a holographic will.