United States

In the 21st century, eighteen is the typical age of testamentary capacity. Full liberty of disposition is not universal. In particular, many states normally grant spouses the right to at least half the estate regardless of what the will says (or if no will can be found). Some require that children cannot be disinherited without good cause. In many case, children omitted in a will may still take their share. Louisiana followed French law, by which the testator can under no circumstances alienate by will more than half his property if he leave issue or ascendants. In 1911, the husband’s consent was sometimes required for a married woman’s will to be valid, but this is no longer the case. Nuncupative and holographic wills are valid in some states, but are forbidden in others. The former are confined to personality and must generally be reduced to writing within a short time after the words are spoken. In Louisiana the mystic or sealed will still existed in 1911. The number of witnesses necessary for the validity of a will of any kind is usually two, but Vermont requires three. To be valid, witnesses must not be heirs under the will. In 1911, wills of soldiers and sailors were privileged, as in England.

In modern U.S. law, wills are not required to be registered prior to death in most states, but are registered and put in the public record after the person making the will dies and the estate is probated. However, it is often still a good idea to have the signing and witnessing of a will notarized, to reduce the risk of disputes over the will’s validity after death. Wills can be used to nominate guardians for minor children, but because children are not property, the will cannot have the final word on the question. Guardianship is decided by courts, though the usual outcome is that guardianship is awarded to the other surviving parent, or, if no parents survive, to the guardian nominated in the last surviving parent’s will.

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