What Makes a Will Legally Valid?
In Indiana, any person of sound mind who is 18 years or older may make a Last Will and Testament. Sound mind means you have an understanding of what you own and can identify who will be receiving those assets from your estate. Every Will must be in writing (except nuncupative, discussed below), signed by the testator, and witnessed by two competent and disinterested witnesses. A disinterested witness means he/she does not have a personal or beneficial interest under the Will. (A person named as an executor, trustee, or guardian does not make that person an interested party.) If a testator were unable to sign his/her own name, he/she could direct someone to sign it for him/her while present. A Will that is handwritten and not signed by at least two witnesses is called a holographic Will. Indiana does not recognize holographic Wills as legally valid.
If the Will has been properly signed and attested by witnesses, Indiana allows the Will to be made self-proving by use of a self-proving clause within the Will or attached to it. The self-proving clause states that the testator executed the instrument as his/her Will, that the testator signed the Will in the presence of two witnesses, that the execution was a free and voluntary act, that the witnesses are signing as witnesses in front of each other and the testator, that the testator was of sound mind, and that the witnesses and testator are at least eighteen years of age. Self-proving clauses allow for a smoother administration when the testator dies.
A nuncupative Will is an oral Will that is made by the testator just prior to the time of death. Not all states recognize these kind of Wills. In Indiana, an oral Will can be made by a person in imminent peril of death, whether illness or otherwise, and is only valid if the testator dies as a result of the impending peril. Also, the nuncupative Will must be declared to before two witnesses, reduced to writing by or under the direction of one of the witnesses within thirty days after such a declaration, and submitted for probate within six months after the death of the testator. Further, the oral Will is limited to the disposal of personal property and to an aggregate value not more than $1,000. It also cannot revoke an existing written Will.
There are constant changes to life that might motivate a person to update or change his/her Will. If it is a change to one provision or a simple addition, a person can make use of a codicil. A codicil is a separate document that is kept with the existing Will. It must also be signed by the testator and two witnesses and be designated as a codicil to the person’s Will. If there are contradicting codicils, the most recently signed and dated one is considered valid. If a person has several changes to his/her Will, it is usually best to update by creating a new Will.
Our attorneys would be happy to help you create a Will or change your old one to bring it up to date.