How to Check the Validity of a Will

POSTED ON: January 31, 2022

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

How to Check the Validity of 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 want the will to accomplish. Most importantly, you want to be sure 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 be 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 at the time they sign the will, and who is signing the will without any kind of duress, menace, or undue influence. 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 olographic will, one that has been entirely handwritten and signed and dated by the testator, will be accepted, it is more easily challenged than a will created and executed with an estate planning attorney.

This is how to check the validity of a will in Louisiana if it is a “statutory will”.  The will must be signed by the person making the will, i.e., the testator, and must be signed on each page of the will.  It must also be notarized and witnessed by two people at the same time. In Louisiana, it should also have a proper “attestation clause”.  Those two witnesses must see the testator signing the will, and the testator must actually declare that what he is signing is his last will and testament and it must be signed in their presence.

If you executed the will outside of Louisiana and it does not meet these requirements, all is not necessarily lost.  Louisiana has a reciprocity rule: as long as the will aligns with the state’s law at the time it was executed, it is acceptable. However, you must have resided in that other state at the time it was signed by you.

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 Louisiana 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, but also to keep the asset 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 trust, which is likely the reason the grantor had the trusts created in the first place.

BOOK A CALL with me, Ted Vicknair, Board Certified Estate Planning and Administration Specialist, Board Certified Tax Law Specialist, and CPA to learn more about estate planning, incapacity planning, and asset protection.

If you liked this article, “How to Check the Validity of a Will” read these additional articles: Will Social Security Get a Raise in 2022? and How Should I Handle an Inheritance? and How Should I Plan to Sell My Business? and Do Charitable Trusts Help with Estate Planning?

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

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