Indiana Last Will and Testament

Introduction

Key Things to Know

1. 1

   A last will and testament is a legal document that states who receives your property and names the executor (personal representative) who will administer your estate after you die. It can also name a guardian for minor children.

2. 2

   Indiana requires 2 attesting witnesses. Under Ind. Code Section 29-1-5-3 the testator must sign, or acknowledge a signature already made, in the presence of at least two witnesses, who then sign in the presence of the testator and each other. A beneficiary who also serves as a witness (an interested witness) does not void the will, but under Ind. Code Section 29-1-5-2 the gift to that witness is void except up to the value of the intestate share they would otherwise have received.

3. 3

   A self-proving affidavit is available and does not need a notary. Under Ind. Code Section 29-1-5-3.1 the testator and both witnesses can sign a statutory self-proving clause, attached to or incorporated into the will, that lets the will be admitted to probate without live witness testimony. Unusual for a Uniform Probate Code state, Indiana's clause is signed under the penalties for perjury rather than before a notary public.

4. 4

   A handwritten (holographic) will is not valid in Indiana. Indiana has no statute recognizing an unwitnessed handwritten will. Every non-nuncupative will, handwritten or typed, must be signed by the testator and attested by at least two witnesses under Ind. Code Section 29-1-5-2 and Section 29-1-5-3.

5. 5

   The will itself does not need a notary. Indiana's execution formality is witnesses, not notarization. A notary is never required to make the will valid, and, unlike most states, is not even required for Indiana's optional self-proving affidavit.

6. 6

   You must be 18 (or a servicemember) and of sound mind. Ind. Code Section 29-1-5-1 lets any person of sound mind who is 18 or older, or who is younger and a member of the armed forces or merchant marine, make a will.

7. 7

   A will can be revoked by a later writing or a physical act. Under Ind. Code Section 29-1-5-6 a will is revoked by destroying or mutilating it with intent to revoke, or by executing a later writing with the same signing and witnessing formalities. Under Ind. Code Section 29-1-5-8 a divorce or annulment automatically revokes any provisions in the will favoring the former spouse.

Indiana Requirements for Last Will and Testament

• Sign in the Presence of Two Witnesses

  An Indiana will must be signed by the testator, or the testator must acknowledge an existing signature, in the presence of at least two witnesses, who then sign in the presence of the testator and each other. Ind. Code Section 29-1-5-3.

• Avoid Interested Witnesses

  A beneficiary who serves as a witness does not invalidate the will, but under Ind. Code Section 29-1-5-2 that witness's gift is void except up to the value of the intestate share the witness would have received had there been no will. Choose two disinterested witnesses to avoid the issue.

• Self-Proving Affidavit Does Not Need a Notary

  Indiana recognizes a self-proving affidavit under Ind. Code Section 29-1-5-3.1, but unlike most states its statutory clause is signed by the testator and both witnesses under the penalties for perjury rather than notarized. Attaching it lets the will be probated without locating the witnesses later.

• Handwritten (Holographic) Wills Are Not Valid

  Indiana does not recognize an unwitnessed handwritten will. Every non-nuncupative will, handwritten or typed, must be signed by the testator and attested by at least two witnesses under Ind. Code Section 29-1-5-2 and Section 29-1-5-3.

• No Notary Required for the Will Itself

  Indiana's execution formality for the will is witnesses, not notarization. A notary is never required to make the will itself valid, and Indiana's optional self-proving affidavit does not require one either.

• Testator Must Be 18 and of Sound Mind

  Any person of sound mind who is at least 18 years old, or who is younger and a member of the armed forces or merchant marine, may make a will in Indiana. Ind. Code Section 29-1-5-1.

• Revoke by a Later Writing or Physical Act

  A will may be revoked by destroying or mutilating it with intent to revoke, or by executing a later writing with the same signature and two-witness formalities. A divorce or annulment automatically revokes any provisions favoring the former spouse. Ind. Code Section 29-1-5-6; Section 29-1-5-8.

• Name a Personal Representative (Executor)

  Name a personal representative, also called an executor, to administer the estate, and consider naming a successor in case the first choice cannot serve. Indiana probate proceedings under Title 29 refer to this role as the personal representative.