Where to Make a Will
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How Do I Know Where to Make a Will?
Generally speaking, the rules are somewhat vague regarding the location in which you draft a will. However, it’s usually best to make and execute your will in your home state of residence. This can help you avoid various legal issues associated with the execution and approval of the will documents, and can help avoid will contests in the future.
The will needs to meet the basic requirements for drafting a valid will document. These requirements usually include:
- Sufficient mental capacity to form the will
- Appointment of an executor, who will handle the will matters once executed
- Having a provision or statement in the will that states that the document is in fact a your will
- Attestation - i.e., having the will reviewed and signed by 2-3 witnesses
- Signing the will and including the date
- Including other provisions, such as those dealing with minor children and those describing specific items of property.
Each state may also have specific laws regarding wills, but they generally include the basic requirements listed above. It may also be possible to use online documents to create a will; these also need to meet state requirements in order to be valid.
Do I Have to Make a New Will When Moving From One State to Another?
Suppose you have a valid will in the state where you live, but then you move to a different state. The question now becomes, is your will valid in the state where you have moved to? The answer to this question depends on several factors.
Generally speaking, most states will recognize an out-of-state will, so long as it was valid and properly executed in the state of origin. The out-of-state will would then be accepted during the probate hearings after the person’s death. However, there are a few legal issues to consider here. Not all states recognize the same kinds of wills.
For example, some states don’t recognize the following types of wills:
- Holographic wills: these are hand-written wills that are not witnessed. In some cases, they may be accepted by the state; however, they may not be valid in other states.
- Handwritten, “attested” wills: These are handwritten wills that are attested (witnessed). Again, these are typically acceptable, though some states don’t recognize them either.
- Oral wills: Few states recognize oral wills. For the states that do recognize oral wills, they usually do so under very specific circumstances, such as when a person is uttering their final words on their deathbed
Thus, it seems like the best way to ensure that a will is valid across state lines is to avoid oral and handwritten wills, and to have them signed and witnessed by the required number of witnesses.
What if Only Part of My Will is Valid in the State I Move To?
A common thing that happens is that the will is generally valid in the new state except for a few provisions or a few different legal issues. What then may happen is that the court in the new state may validate the entire will, but strike out or void select provisions of the will.
For example, divorce and remarriage can drastically change the way that property is allocated between the partners. In such cases, this can affect the will also. Thus, the court may choose to strike out certain provisions regarding spouses if the person has recently undergone divorce. This is especially true if the parties are no longer located in the same state. The court may require the person to rewrite or edit that portion of the will.
Another example has to do with the witnesses who originally signed the document. Some states allow “interested” witnesses to sign the document (i.e., person who will receive a gift from the same will document). On the other hand, some states don’t allow interested parties to be witnesses to a will. If this is an issue the court may require the will to be re-executed using different witnesses.
Do I Need a Lawyer for Help With a Will Document?
Drafting a will often requires much foresight, and some knowledge of the basic laws covering wills. You may wish to speak with a lawyer if you have any questions about the validity of a will document. Your attorney can provide you with legal advice on how to proceed with drafting a will. Also, if a will dispute arises, your attorney can represent your estate and your interests in a court of law if necessary.
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Last Modified: 11-02-2012 11:00 AM PDT
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