Wills

A will is a legal declaration that distributes a person’s property upon death. A well-written will can transfer property quickly and avoid complicated estate tax concerns.

In most cases, the size of the estate — the person’s assets and property — determines the size of the will. A will describes the estate and details which individual will receive specific property. In many cases, a will provides more defined instructions, including the care of surviving children or the formation of posthumous trusts.

The drafter of a will is called the testator. Dying with a will is referred to as dying “testate,” while dying without a will is referred to as dying “intestate.” If a person dies intestate, property is distributed according to state law and generally goes first to the spouse and children.

The person who collects and distributes the estate is called the executor. The executor pays funeral expenses, taxes and debts and then distributes the property to the people designated by the will or by law to inherit the estate.

A will is important for reasons other than distributing property. The testator can designate a guardian for minor children, incorporate tax-planning techniques, give assets to persons other than immediate family and give to charities. A will also is necessary to protect unmarried partners.

Types of Wills

• Holographic: An unwitnessed will written in the testator’s handwriting.
• Joint: One will that covers two people, usually a husband and wife.
• Pour-over: A will created at the same time as a trust that simply transfers everything in the estate into the trust. One purpose of this type of will is to ensure that assets not named in the trust (because they are acquired after the trust is created or not properly titled in the name of the trust) are managed and distributed under the terms of the trust.
• Simple: A will that provides only for the outright distribution of assets for a straightforward estate.
• Testamentary trust: A will that sets up one or more trusts into which a portion of the estate assets will go. This type of will is used most frequently when minor children survive the testator; the testamentary trust gives direction for use of the assets for the children.

Changes to a will

A will may be changed as often as necessary when life circumstances change. If a minor change is needed, a page called a codicil may be added to the will indicating the change.

No one should ever make handwritten changes to a will. Such changes likely will be invalidated by a court. To properly change a will, a codicil or an entirely new will is necessary.

Disinheritance

The testator generally has freedom to choose his or her heirs. The testator may disinherit heirs, including children; however, he or she may not disinherit a spouse without written agreement from the spouse. By statute, a person may receive a certain amount of his or her spouse’s property when that spouse dies. If a will does not give a spouse the amount he or she is entitled to under the law, he or she has the right to dissent from the will and receive the share provided by statute.

Creating a valid will

States vary in specific requirements to make a valid will, but these are some of the most common rules:

Age: The testator must be age 18 or older. Some states allow people under age 18 to form a will if they are married, in the military or otherwise emancipated.

Mental state: The testator must be of “sound mind,” which includes:

• Knowing what a will is and that you are creating one.
• Understanding the relationship between yourself and the individuals (if any) whom you provide for.
• Having an understanding of what possessions you own.
• Being capable of deciding how to distribute your property.

Form: Some states allow handwritten wills, but most require a will to be typed or printed. The document must state clearly that it is a will and must contain at least one substantive provision.

Witnesses: A will must be dated and signed in the presence of more than one person. A witness should not be named in the will as a beneficiary, spouse, child, executor or guardian. You do not need to describe the contents of the will to the witnesses; they are merely witnessing your signature.

Last updated: Oct. 1, 2008