Documentation - Wills
A will is a written document or oral communication to specify who gets your property covered by that document when you die. It can also serve other purposes such as listing a guardian for minor children. Property left by a will normally goes through the probate process. The probate process can be timely, expensive and public.
A will has no legal effect until death. It may be revoked, changed or added to at any time before the creator's death, provided the changes are made strictly in accordance with the requirements set by law. Amendments to a will are called codicils, which can modify small provisions to a will such as the gifts listed under the will to who is named the executor. The executor (named in the will) represents the deceased in court. If no will exists or no executor is named, the court appoints an administrator for this purpose.
There are several legal requirements to properly draft a will. These are:
· Person must be at least 18 years of age
· Must be of sound mind
· Must appoint at least one executor
· The will must be signed and dated
· Will must be signed in presence of at least two witnesses (witnesses must be 18 and of sound mind. Also witnesses generally cannot be related or be the beneficiaries of the will).
· Must have at least one substantive provision (i.e., who inherits specific property)
· You must state the document is your will
Types of Wills
There are several different types of wills and it's important to distinguish the differences:
- Simple will – This is generally the most common type of will that has been witnessed with all formalities required by state law.
- Holographic or handwritten will – A will that is handwritten without the presence of a witness. Very few states recognize these types of wills, and only in limited, specific circumstances.
- Nuncupative or oral will – This type of will is where an individual orally communicates his/her wishes. Oral wills are only recognized in a few states and usually only in emergency situations.
- Testamentary trust will – A testamentary trust will sets up one or more trusts for the distribution of the estate at the time of death. See section below titled "Trusts."
- Pour-over will – This is used in conjunction with a trust, and brings over any assets that were not originally included in the trust to be poured-over to it by virtue of the will.
- Joint wills or reciprocal wills – These types of wills are used when there are reciprocal provisions needed for the disposition of a shared property, if and when one of the included parties passes away.
Modifying or Revoking a Will
You may simply choose to revoke an old will by creating a new will or a codicil. The subsequent will or codicil must be executed with all of the formalities required for the proper execution of a will. Generally, all new wills should include some variation of the language that the testator "hereby revokes all previous wills and codicils heretofore made," indicating that it is the newly executed will that shall control the disposition of the testator's assets.
In some states, getting divorced automatically revokes property left to your former spouse. If you are mentally competent, you may also destroy the will whereby you revoke it; although this could lead to a "will contest."
Avoiding Will Contests
Successful will challenges are rare. The legal grounds for contesting a will is limited to proving the creator was either not of age or not of sound mind. A challenger must prove incapacity or that the will was procured by fraud, duress or undue influence.
A common vehicle to safeguard against a will contest is to include a "no contest" provision stating that anyone who contests the will shall take or receive nothing from the estate. This is usually enough to deter a contest
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