What Are the Three Conditions to Make a Will Valid?
A last will and testament names a representative to manage your affairs upon your death and ensures that your assets are distributed according to your wishes. In New Jersey, there are three conditions to make a will valid:
- The testator, or person making the will, must be at least 18 years old and of sound mind.
- The will must be in writing, signed by the testator or by someone else at the testator’s direction and in their presence. It must also be signed by at least two witnesses.
- The will must be notarized. Otherwise, certain conditions must be met to determine its veracity.
The conditions that make a will valid will vary from state to state. New Jersey’s specifications address both situations where the deceased created a formally documented, notarized will as well as situations where the deceased left only a handwritten record of their last intentions.
Inheritance in New Jersey
When a person dies intestate in New Jersey—meaning they did not leave a will—their assets are divided among heirs according to a number of specifications as described in New Jersey Revised Statutes (NJRS) §3B:5-3 through NJRS §3B:5-16.
The existence of a will makes things simpler for a family. When there is a will, the assets are dispersed according to the deceased’s wishes by their appointed executor.
In either case, this process is called probate. New Jersey has two kinds of probate: simple probate and regular probate. Simple probate typically applies to smaller estates where there is not much contention over the distribution of assets. While many families can make use of simple probate, the regular probate process in New Jersey is relatively straightforward, inexpensive, and affordable compared to many other states.
After an individual dies, the family takes the deceased’s will to their county Surrogate’s Office for approval. If the will has the necessary signatures and notary stamp, it will be considered self-proving, meaning that no further validation of the will is necessary. The surrogate will then appoint the executor to manage the distribution of assets.
When the will lacks the signature of a notary, the family will have to prove the will’s legitimacy—which, depending on the circumstances, may take time.
For a legal consultation, call 856 770 2744
Three Conditions to Make a Will Valid
The three conditions to make a will valid are intended to ensure that the will is genuine and reflects the wishes of the deceased.
Condition 1: Age 18 And of Sound Mind
This most basic condition is described in NJRS §3B:3-1, which determines that anyone of sound mind who is at least 18 years old is entitled to create a will.
The intention with this specification is to ensure that a person is competent to decide how their assets should be divided upon their death and that they are not being manipulated by anyone who might be seeking to benefit.
The term “of sound mind” is common when determining legal competency. This means the person is able to understand the document they are signing.
Condition 2: In Writing And Signed
According to NJRS §3B:3-2, a will must be signed by the deceased or by someone who had the authority to sign for the maker of the will. The will must also be signed by at least two other witnesses. In order for the signature of these witnesses to be valid, the signees should add their signatures to the document as soon as possible.
New Jersey will accept handwritten wills whether or not they are witnessed, provided that it can be clearly shown that the document was intended to be the deceased’s will. The document should also be clearly identifiable as written in the deceased’s own handwriting.
Condition 3: Notarized
If a will is notarized at the time of its execution and witnessing, it is considered self-proving, according to NJRS §3B:3-4. A will can subsequently be made self-proving if the testator acknowledges the will’s legitimacy and the witnesses sign affidavits before a notary, according to NJRS §3B:3-5.
If a will has not been notarized, that does not mean it is invalid. It may, however, slow down the probate process, as the surrogate may have to take more steps to authenticate the will.
How We Can Help
When you are creating a will, you may be facing many considerations. A lawyer can talk with you more about how state laws affect the creation of a will, ensuring that you’ve met the three conditions that make a will valid. A lawyer can also help you make informed decisions about inheritance and your estate.
The estate planning attorneys at Bratton Law Group are here to help make sure that nothing falls through the cracks. To schedule your estate planning consultation, call our offices today at 856 770 2744
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