Often when going through someone’s house and other property after he or she has died, you might find a document that looks to be a will. In order to determine if it is indeed binding as the decedent’s last will and testament, it must meet certain criteria. Each state has its own laws on the subject, so what follows is more rule of thumb, but the principles are generally the same across the country.
First, the decedent must have clearly stated in the document that he knew it to be his last will and testament.
Second, the decedent must have signed it.
Third, the will must have been witnessed, usually by two or three people. There is a big exception to this rule. Many states will allow a holographic will, which is a will that the decedent handwrote himself and signed without witnesses. The drawback of such a will is that there is no way to have witnesses later verify or authenticate it.
Fourth, the decedent must have been of sound mind. In other words, he had to know what he was signing. In some cases, you can deduce that was not the case. If the date on which your decedent signed the will coincided with a time when he was experiencing something that you know might have interfered with clear thinking, that is a red flag. If you have questions about this, you can ask the witnesses for their observations of the decedent’s behavior and demeanor when signing.
Fifth, speaking of witnesses, they should not have a financial interest in the will. In other words, if someone is both a witness to a will and a beneficiary, that person may have forfeited his or her inheritance.
Sixth, the document must contain some statements as to who should get at least some of the decedent’s property. A will does not have to be exhaustive and cover all of the decedent’s assets.
Seventh, the will you found must have indeed been the decedent’s last will and testament. In other words, if the will you found was signed on January 14, 2010, and there is another will signed on March 23, 2015, the 2015 will generally invalidates and replaces the 2010 will.
