Settling an Estate: Does The Will Appear Valid?

As an executor, before you start deciphering a will in preparation for settling an estate, you should take a moment to consider whether the will is valid. The final word on validity will be issued by the probate court if you go through formal probate proceedings. But it's good to be confident that the will is a legally binding document before you begin following its instructions. (For tips on wrapping up an estate if no valid will can be found, see How Is an Estate Settled If There's No Will: Intestate Succession)

First off, it's important to understand that certain circumstances can affect the will:

• Family changes -- for example, the will maker's divorce or marriage -- can have dramatic legal effects on the terms of a valid will.
• Wills generally cannot dispose of property that's held in joint tenancy or in a living trust, or for which a beneficiary has been named in another binding document.
• Even a will that's properly signed and witnessed may be open to challenge -- for example, on the ground that the will maker didn't have the mental capacity (perhaps because of Alzheimer's or another illness) to make a valid will.

For a look at specific situations that should trigger a reexamination of the deceased's will, see Settling an Estate: When Executors Should Take a Second Look at the Will.

Basic Requirements of Wills

To be legally binding, a will must meet three requirements, all intended to protect against fraud or forgery. The will must be:

• in writing
• signed and dated by the person who made it, and
• signed by witnesses.

If a will seems to have been properly signed and witnessed, chances are all is well. You have no responsibility to investigate the circumstances of the will's signing unless someone suggests that there is a problem. The major exception to these rules is that in about half of the states in the United States, a handwritten, unwitnessed, but signed will is valid if it's clear that it really was intended to be a will. See "Handwritten Wills," below.

Writing

These days, most wills are generated on a computer and printed out; older wills were generally typewritten. A will may also be entirely handwritten as long as the signature and witnessing requirements (discussed below) are met. But a mix of machine-generated printing and handwriting can be legally troublesome. For example, if something on a typed document is crossed out or added by hand, it's impossible to tell whether the change was made before or after the document was signed -- or even who made it.

A minor handwritten change, or one that all inheritors agree to -- for example, a note added to an existing will after a grandchild is born, leaving the new baby $1,000 -- is not likely to be a problem. The inheritors can probably figure out a way to honor the wish, even though they are not legally bound to do so. But if the change is major and may cause disagreement -- for example, removing a beneficiary entirely -- see a lawyer.

Signature and Date

The person who wrote the will (the "testator") must have signed and dated it at the end of the document. If a will maker who wasn't physically able to sign directed someone to sign for him or her in front of witnesses, that counts as a valid signature. The signature does not have to be notarized. It's common, but not legally required, for the person to also have initialed each numbered page of the will.

Witnesses

As a protection against fraud, almost every state requires that witnesses (as well as the will-maker) sign the will. If the witnessing requirements were not met, the probate court judge will decide whether or not to admit the will to probate. Keep in mind that judges take these rules quite seriously.

At least two competent witnesses must have signed the will for it to be valid. In most states, the witnesses must have both watched the testator sign the will and then signed it themselves; in other states, it's enough if the will maker told them his or her own signature was valid and asked them to sign later. The witnesses don't need to have read the will, but they need to have known that the document they watched being signed was a will.

• Age of witnesses. Witnesses must be legal adults (18 years or older). If any of the witnesses are under 18, the will is invalid.
• Witnesses who inherit under the will. In most states, someone who stands to inherit property under a will may not be a witness to it. In these states, if a beneficiary signs the will as a witness, and there aren't enough other "disinterested" witnesses, the general rule is that the gift to the witness is canceled. The rest of the will remains valid. If you face this situation, you'll need to look up your state's law on witnesses.
• Notaries as witnesses. Wills don't need to be notarized. But some people get wills notarized anyway. Usually, if there's a dispute over witnessing, the notary public counts as a competent witness. For example, if only one person signed as a witness (or one witness was disqualified) but the will was notarized, the notary would be counted as the second witness.
• Lawyers as witnesses. Normally, it's not a problem if the attorney who drafted the will also serves as a witness. This is true even if the attorney is appointed executor and so stands to benefit (by collecting fees for serving as executor) from the will.

For more about execution of a will, see "The Will-Signing Ceremony."

Out-of-State Wills

You may find that the will was signed in a different state from the one in which the person was living at the time of death. This shouldn't be a problem. Generally, if the will was valid under the laws of the state where it was signed, the new state will accept it as valid.

Handwritten Wills

If you find a handwritten will that was signed in front of witnesses, the will is considered a regular will and is treated just like a typed one. But, if you find a handwritten will that was not signed by witnesses, you'll need to check your state's laws. Such "holographic" wills are legal in about half the states if they are signed and all of the important provisions are in the writer's handwriting. Some states require that they also be dated.

What about a preprinted will form, on which the will maker has filled in blanks in handwriting? Some courts have considered these documents to be holographic wills. Some haven't. Even in many states that don't allow holographic wills, a will that was a valid holographic will when it was made in another state will be considered valid.

Videotaped Wills

Video wills are not valid.

More Than One Will

It's common for people to make several wills over their lifetimes, changing the terms as they marry, divorce, have children, suffer the death of a spouse, or acquire different assets. If the deceased person didn't get around to destroying old wills, you may find more than one. The general rule is that the most recent will supersedes the earlier ones. In fact, it's standard for a will to include a statement revoking all previous wills and codicils.

Even if a will doesn't expressly revoke previous wills, it may revoke them simply because it contradicts them. If a more recent will is inconsistent with an earlier one, the law generally follows the wishes expressed in the more recent document. Even if you're pretty sure that an old will has been superseded by a newer one, hang on to the old document. If the later one (or part of it) turns out to be invalid for some reason, you may need the old one.

See Nolo's article Should You Accept the Job of Executor to Settle an Estate for more information on choosing to accept an executor position.

For more information about settling an estate, see The Executor's Guide: Settling A Loved One's Estate or Trust, by Mary Randolph, J.D. (Nolo).