Wills—An Overview

    A will is a legally recognized tool that can be used to:

  • Establish a clear plan for the distribution of property upon death
  • Name a person or persons to act as guardian of minors or others
  • Provide direction for the payment of final debts and taxes
  • Minimize estate tax consequences

In legal terms, if you die with a valid will to govern the orderly distribution of your estate, you are considered to have died “testate.” If you have no will, the law considers that you have died “intestate.” If you died intestate, your assets will be distributed according to state intestacy laws. Under the intestacy laws of all states, spouses and children receive some priority to assets when there is no will.

If you died with a will, the will must go through the probate process, where the probate court will oversee the orderly distribution of your property, as well as the payment of debts and taxes.

The will customarily names a person to serve as the executor. The executor puts together an inventory of the assets of the estate; pays funeral expenses, taxes and debts; and then distributes the remaining property in accordance with the terms of the will.

Types of Wills

    Though a valid and enforceable will must meet certain “formalities,” a will can take different forms:

  • A simple will provides for the outright distribution of assets for a straightforward estate.
  • A holographic will is an un-witnessed will written in the testator’s handwriting.
  • A joint will identifies estate planning wishes of two or more people, usually a husband and wife.
  • A pour-over will 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. A pour-over will is different from a testamentary trust. With a pour-over will, property is transferred to an existing trust. A testamentary trust is one that is created by the terms of a will.

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. As a general rule, though, a new will revokes all prior wills and codicils. In addition, handwritten changes on a will are typically not enforceable.

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.

The Legal Formalities to Create 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,” generally defined as:
    • 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.

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