How to Check the Validity of a Will

How to Check the Validity of a Will
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Without a valid will, a person’s estate passes to their surviving heirs under intestate succession (i.e., ‘succession without a will’).

A properly created will is used to distribute assets, name the executor of the estate, provide details for the powers you want the executor to have, and more, depending on what you wish the will to accomplish. Most importantly, you want to ensure your will is valid, as explained in a recent article “Estate Planning: A valid will” from Lake Country News.

There are times when an unhappy heir receives less than expected, or for whatever reason, the heir feels they have been shortchanged. If this results in litigation, the will must not just be valid but strong enough to withstand a legal challenge.

A will may only be executed by a person who is of sound mind when they sign the will and who is signing the will without any duress, menace, or undue influence. The law sometimes presumes the signature has been made under duress in certain situations, such as when a paid caregiver receives a substantial gift. Incapacity or duress is a common reason for wills to be challenged.

A will may be valid if it satisfies the estate laws of your state of residence. While there are instances when a holographic will, one that has been handwritten, may be accepted, it is more readily challenged than a will created and executed with an estate planning attorney.

The will must be signed by the person making the will, i.e., the testator, and depending upon the state, witnessed by one or two people simultaneously during the testator’s signing. Your estate planning attorney will be familiar with the laws of your state. Those two witnesses must see the signing of the will in their presence. If you have a will in a state that requires one witness but move to a state requiring two witnesses, your will may be deemed invalid.

Different states also have other requirements for accepting wills prepared in another state. Some states have reciprocity, whereas it is acceptable as long as the will is aligned with the state’s law when it was executed. Others are not so flexible.

When the will is filed with the court to begin the probate process, the court will examine the will to be sure it complies with the state’s law. Any assets outside of the will—i.e., trusts—are not subject to probate and are not considered part of the taxable estate. One of the reasons to have trusts is to remove the asset from the estate for tax purposes and keep the assets private. Only the grantor, trustee, and estate planning attorney know the trusts exist and what they contain.

Heirs who feel they have been shortchanged may not know about assets in a trust, which is likely why the grantor had the trusts created in the first place.

Reference: Lake County News (Dec. 31, 2021) “Estate Planning: A valid will.”