Five requirements for a valid will
There are five requirements to keep in mind in the creation of a legal will:
1. Legal age and status
The first requirement for a valid will is that the person be of legal age in order to write a will. In most states, this means that the person must be age eighteen or older.
The age requirement is created by the state legislature to make sure that a person has the right capacity to make a will. In order to transfer property, the person should be able to understand the nature of the property and understand the basic purpose of a will.
With a will, there is typically a provision for payment of any debts. Then there are both specific distributions and a division of the residue or balance of the property. The person needs to be old enough to understand the nature of his or her property and the general types of property and amounts that will be transferred to the recipients.
2. Capacity to make a legal will
In order to make a will, you need to be able to understand in a general way both your property and the function of a will. As we grow older, there will come a time when we have some difficulty remembering and understanding information. Nearly everyone lives with some loss of memory with age, and this is not the major bar to creating a valid will. However, some persons eventually get to be so senior that they no longer have a clear understanding of their property and of the basic provisions of a will.
To be certain, you do not need to be a tax expert or an expert in the probate process. You merely need to be able to understand the nature of your property and the methods for transferring the property to your beneficiaries. This period of time can be a “lucid interval.” This means that you don’t need to be absolutely in top form the entire day, but that you do need to have a period of time where you can think reasonably clearly.
In some cases, medical advice may be helpful. If you are taking one or more types of medication, a doctor can describe the best time of day for signing a will. If there are questions about a person’s ability to understand the document, then it is helpful to have several neutral witnesses and to make certain that the person signing the will can explain the basic provisions of the document.
3. Intent to transfer property
The third requirement for a valid will is that the person actually intends to transfer property. For a senior person, he or she might draft several different wills over a period of time. In order to show that there was intent to transfer certain property to specific members, it is helpful if the documents show a generally consistent trend or overall plan.
Questions of intent arise when a person has two or three beneficiaries and, over a period of years, plans to benefit all three. However, at a very senior age, the person suddenly may make a decision to leave the entire estate to one of the three beneficiaries. The person must clearly establish that his or her intent is to leave the property to that beneficiary and to disinherit the other beneficiaries. Quite often, the will or trust will make specific reference to the other recipients and show that it is the intent of the donor to leave the assets to a specific person.
For a charitable transfer, it is quite important to list a qualified charity and the city and state of that organization. There have been many cases in which a person expressed a general desire to provide assistance to a group, but did not identify a specific charity by legal name, city and state. On quite a few occasions, these charitable transfers did not occur because the person’s intent was not clearly expressed.
4. Freedom from fraud
The fourth requirement for a valid will or trust is that it correctly reflect your intent. This means that a family member or any other person has not caused you to change your will by fraud, undue influence, duress or coercion.
As we become more senior, we tend to become more dependent on our family and friends. When writing a will or trust, it is important that the will or trust expresses your preferences and not the preferences or desires of other family, friends or advisors. The rules state that if a beneficiary can show that there was fraud or undue influence exerted upon you by another beneficiary, then the will may be modified or disregarded.
How do you protect yourself? One of the best protections is a relationship with an independent attorney or CPA. He or she will talk to you privately. This private discussion will help establish the provisions of a will or trust according to your intentions. The independent advisor is one of your best protections against any pressure from outside parties.
5. Wills are sometimes not accepted by the probate court
A will may be rejected by the probate court because of lack of intent, fraud, undue influence, or improper circumstances when signing. Under most state laws, the person signing the will and the witnesses must be within the sight and hearing of each other. Some wills that have been signed in separate rooms have been held to be invalid by the courts.
According to a 2011 survey conducted for EZLaw.com, just over one third of Americans have a will, and fewer than half have any estate-planning documents at all. “People don’t want to think about dying. They’re uncomfortable with the topic,” says Danielle Mayoras, co-author with Andrew Mayoras of Trial & Heirs: Famous Fortune Fights. “For that reason, they don’t do anything about estate planning.”
Making sure that your estate is distributed in accordance with your wishes is important. Professional assistance is always advisable. Fortunately, there are many professionals who are able to provide you with the guidance you require. Use them.
Jackie Jacobs is the Executive Director of the Columbus Jewish Foundation, the Central Ohio Jewish community’s planned giving and endowment headquarters.