To make a valid will under Indiana law the will must be:
- In writing;
- Signed by the testator;
- Witnessed and signed by two witnesses.
Who Can Make a Valid Will Under Indiana Law?
Under Indiana law, “any person of sound mind who is eighteen (18) years of age or older, or who is younger and a member of the armed forces, or of the merchant marine of the United States, or its allies, may make a will.” IC 29-1-5-1.
To be of sound mind under Indiana law, the testator must have testamentary capacity, meaning the testator must know:
- The extent and value of his property;
- Those who are the natural objects of his bounty; and,
- Their deserts, with respect to their treatment of and conduct toward him.
See Hays v. Harmon, 809 N.E. 2d 460, 464 (Ind. Ct. App. 2004).
An Indiana Will Must Be Signed By The Testator
In order to meet the signing requirement to make a valid will under Indiana law, the testator, in the presence of two or more attesting witnesses, shall signify to the witnesses that the instrument is the testator’s will and either:
- Sign the will;
- Acknowledge the testator’s signature already made; or
- At the testator’s direction and in the testator’s presence have someone else sign the testator’s name.
The signing rules for a valid Indiana will can be found at IC 29-1-5-3(b).
What Are the Witness Requirements For a Valid Indiana Will?
A valid Indiana will is required to be witnessed by two or more witnesses who sign the will in the presence of the testator and of each other.
Any person competent to be a witness generally in Indiana at the time of attestation of the will may act as an attesting witness to the execution of the will. Subsequent incompetency of a witness shall not prevent the probate of the will. See IC 29-1-5-2.
Does an Indiana Will Have To Be Notarized To Make It Valid?
No, under Indiana law a will does not need to be notarized in order to be valid.
Indiana has a procedure to make a will self-proving, which makes the process of admitting the will to probate easier by not requiring the testimony of the witnesses (because they have already signed a self-proving clause).
Section 29-1-5-3.1 of the Indiana Code sets forth the requirements to make your will self proving. To make a valid Indiana will self-proving, the testator and the witnesses sign a document that is attached or annexed to the will which states substantially as follows:
We, the undersigned testator and the undersigned witnesses, respectively, whose names are signed to the attached or foregoing instrument declare:
(1) that the testator executed the instrument as the testator’s will;
(2) that, in the presence of both witnesses, the testator signed or acknowledged the signature already made or directed another to sign for the testator in the testator’s presence;
(3) that the testator executed the will as a free and voluntary act for the purposes expressed in it;
(4) that each of the witnesses, in the presence of the testator and of each other, signed the will as a witness;
(5) that the testator was of sound mind when the will was executed; and
(6) that to the best knowledge of each of the witnesses the testator was, at the time the will was executed, at least eighteen (18) years of age or was a member of the armed forces or of the merchant marine of the United States or its allies.
Alternatively, this language can include a clause signed by the testator and the witnesses that says the same as above.
Most Indiana probate lawyers will as a matter of practice make a will self-proving. It is a good idea to consult with an Indiana probate lawyer to make sure you create a valid will under Indiana law.
