Wills and Last Testaments

Don't Be Caught Dead Without a Will!

A will is a legal document drafted and executed in accordance with state law that explains how you want your assets distributed when you die. It also allows you to name guardians for your child(ren).

To be legal, a will must have certain elements:
  • You must be of legal age (eighteen in most states);
  • You must be of sound mind at the time the will is drafted: mentally competent and not suffering from a mental illness;
  • It must include your intention to transfer property;
  • In almost all instances, it must be written;
  • It must be properly witnessed and signed by at least two witnesses (in most states, these witnesses cannot be people who stand to inherit anything under the will);
  • It must be properly executed with a statement at the end attesting that it is your will, the date and your signature and the fact that you signed it before witnesses (many states allow “self-proving affidavits” attesting that the witnesses observed the signing of the will.)
When deciding to create a Will, the first thing you should do is take inventory of your assets, which includes your investments, retirement savings, insurance policies, and real estate or business interests.

Keep your Will in a safe place, like a safe deposit box or a fireproof safe at home, where it can be easily located after your death. Visit Us at Google+ Copyright HG.org

Legal Terminology

Specifics of a Will

The following is some basic information required by most states in a Will. However, be explicit in your wishes when drafting a Will. If there’s a possibly of confusion or ambiguity, spell it out.

  • Your name
  • You spouse’s name, if applicable
  • Your children’s names, if applicable
  • Your stepchildren’s or foster children’s names and how you want them to be treated, if applicable
  • A statement revoking any other existing will, if one exists
  • The name of your Executor and usually one Successor Executor
  • A list of powers you want your Executor to have
  • A list of any special gifts or personal property
  • Instructions for distributing your estate after debts, taxes and other expenses have been paid
Some people include burial instructions in their will. However, it makes more sense to have these written up in a separate statement so that your family members can access them easily.

Changing a Will

Circumstances often change after drafting a Will. The Testator is legally allowed to change his/her Will. You can make changes that reflect life changes, such as marriage, divorce, children, etc. You can also change your will if you decide you simple don’t want the same Beneficiaries you had originally chosen.

To make these changes, you can either draft and execute a new Will that revokes the previous one, or for minor changes, add a codicil to your existing Will. The codicil is a separate document that legally amends the existing Will. Any changes should be executed by a professional to ensure that they are accurate and binding.

Disinheriting an Heir

If you do not want your children or other family members to inherit from your estate, you must legally disinherit them by saying so in your Will. Although, under state law, minor children will usually be provided with an allowance from the Testator’s assets until they reach the age of 18.

Spouses are more difficult to disinherit. Unless there is a prenuptial agreement stipulating that the spouse will not inherit, all states prevent spouses from being completely cut off in a Will. The set share for surviving spouses in most states is one-third to one-half of the deceased spouse’s estate.

Most attorneys will discourage Testators from trying to cut a family member out of a Will completely. Another option would be to leave a small amount to the family member and include an “in terrorum” (no contest) clause which can prevent the Beneficiary from receiving any assets if he/she challenges the Will.

Contesting a Will

It is very expensive and time consuming to challenge a Will and it’s rarely successful. In some states, when a Will is created, an in terrorem (no contest) clause can be included to discourage anyone from challenging its validity. This clause essentially forces a Beneficiary to choose between taking what he/she has been given under the Will or being completely disinherited.

If the Will does not have an enforceable in terrorem (no contest) clause, it can be contested in probate, but only by a person with legal standing. Legal standing laws vary from state to state, but generally it means someone who has something at stake, such as a Beneficiary in the Will or someone who believes he/she should have been named a Beneficiary in the Will.

There are very specific legal reasons to challenge a Will; unfairness is not one of them. Valid challenges include forgery; lack of mental capacity of the Testator when the Will was drafted; failure to meet state requirements; or undue influence, fraud, coercion or mistake.

Wills, in full or in part, can be found to be void in probate. This means that all of or part of the Will won’t be enforced. If a Will is voided in full, the estate will be distributed under the state’s intestacy laws. If only part of the Will is voided then the share from the voided portion is redistributed into the estate and dispersed according to the Will.

Dying Intestate

Dying intestate means passing away without preparing a valid Will. When this occurs, individual state laws will determine how your estate is distributed. Laws that protect and govern the distribution of property in an intestate estate are called the Laws of Intestate Succession. Intestacy succession laws are used by every state to identify your beneficiaries, administrator and guardian of your children.

How your estate will be distributed if you die intestate depends largely on where your permanent residence is and which of your family members survive your death. Other factors include how the property is owned, where the property is located, and the family relationship that your living relatives have with one another. If you live in one state and own real estate and/or tangible personal property in one or two other states, your property will be distributed according to each state’s intestacy laws and you could end up with three different sets of Beneficiaries.

The 1990 Uniform Probate Code (the Code) serves as a general guideline for many states’ intestacy laws, but they can still vary greatly from state to state and from the Code, as well. In all states, if married, when you die intestate, your surviving spouse will automatically inherit a specific percentage of your estate, although the percentage amount varies from state to state. Surviving parents, children, grandchildren or other decedents can also affect how your estate is distributed.

The best way to ensure that your estate will be distributed as you desire; that it be administered by whom you select; and that you choose the guardian who will provide and care for your minor children in the event of your death, is to prepare an Estate Plan.

United States Wills and Testament Law by State

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