What Makes a Will Valid?
A legal will in San Diego is one that will pass through probate without many issues. However, it is the executor’s job when executing the will to ensure that it is legal and valid in the state. During probate, the final word of the will’s validity is determined by the presiding judge.
Those creating an estate plan, however, should be aware of what constitutes a legal and valid will; so, that they can ensure there are no hinges in the plan for family members later.
Items That Affect a Will’s Status
There are life circumstances that can influence a legal will in San Diego. These conditions include:
- Major family changes, such as a divorce or new marriage.
- Property held in joint tenancy cannot be disposed of through a will; regardless if it is valid.
- Even a will with a signature and witness can be challenged. Especially if the maker of the will did not have the mental capacity to create the will (such as being diagnosed with dementia).
The Basic Requirements of a Legal Will in San Diego
For a will to be legal, there are three basic requirements:
- The will must be in writing.
- The will must be signed by the testator.
- The will must be signed by at least two witnesses. Witnesses cannot be beneficiaries.
If the will is signed and witnessed correctly, it is likely the courts will consider it valid. An executor is not legally required to investigate a will if it is signed and witnessed correctly, and the only time the probate court officials question that will is if someone contests it.
The Handwritten Will: Can it Be a Legal Will in San Diego?
Most estate planning services now use the computer to draft and complete a will. Wills before that were often typed. However, that does not mean a handwritten will is invalid. If there is a signature of the testator, as well as witnesses, the handwritten will might be valid.
A valid will must have witnesses, but the requirements for witnesses are rather fuzzy between counties. The witness requirement is there to protect against fraud and undue influence. When observing requirements are not met, the will may be deemed invalid, and the estate will follow the statute for distributing.
Two competent witnesses must be present to sign the will when it is complete. These witnesses must be present when the testator signs the will too – verifying it was the testator who signed it. There are other requirements as well, including:
- The witnesses must be considered legal adults; therefore, they must be over the age of 18.
- A witness that stands to inherit from that estate plan cannot witness the estate plan’s creation. Doing so creates a conflict of interest and gives other family members grounds to challenge the will’s validity.
- A will does not need to be notarized, but a notary can help avoid disputes over witnesses. The notary counts as a witness too.