Legal Requirements for a Will

New York Estate Lawyer Robert Adler will help you determine what you need in your will and how you can make your wishes clear.

To have a legally valid will:

  • You must have testamentary capacity,
  • Free will,
  • An intention to transfer property; and
  • Sign the will in front of witnesses.

Testamentary Capacity

A legal requirement of a valid will is that the will-maker possess testamentary capacity. Testamentary capacity encompasses two main elements: (1) age and (2) soundness of mind. To make a valid will, you must be 18 years of age and you  must be of sufficiently sound mind and memory to be capable of knowing:

  • the extent and value of your property,
  • of knowing who the natural objects of your bounty are, and
  • of retaining these facts and formulating them into a specific plan for distribution of your estate. 

No Undue Influence

If, in making a will, the will-maker’s free will is destroyed, substituting another’s volition for his, the will is invalid.

Intention to Transfer Property

The will must have a provision that disposes of property, and it must indicate the will-maker’s intention that the document is his or her final word on what happens to his or her property.

Sign in front of Witnesses

Most states require at least two witnesses to the will-maker’s signature. The witnesses should not be related to the will-maker or entitled to receive anything under the will. The will-maker must sign and date the will in the presence of the witnesses and the witnesses must sign in the presence of the will-maker and in the presence of each other. The witnesses do not need to know the contents of the will.

You do not need to notarize your will to make it legal. However, most states allow you to make your will “self-proving.” A self-proving will has an attached notarized affidavit (a sworn statement signed by the witnesses in front of a notary public) which states that all required legal formalities were observed in signing the will. The affidavit has no bearing on the legality of the will itself. It just speeds up the probate process because the witnesses will not need to be located after your death to confirm that the document was properly signed and executed.

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