Wills

A will is a written declaration by an individual (testator) of his or her intentions for the disposition of assets after death. If the will was prepared and executed in accordance with legally required formalities, and if the testator was competent and not under duress, the probate court will generally order that the testator's plan be carried out by the executor.

A will usually does not direct the disposition of all of a person's property. The most common examples of property that does not pass by will are jointly held property and life insurance payable to a named beneficiary. While a will is an essential part of almost any estate plan, it should be viewed as only one part of the total picture.

Purposes of a Will

A will does more than provide a plan for the disposition of property. These important advantages should not be overlooked:

A will can help to minimize or avoid estate costs--taxes, administration expenses and shrinkage of assets.

A will may nominate a guardian for minor dependent children if there is no surviving parent.

Specific assets--e.g., family heirlooms--can be earmarked for an appropriate heir.

The testator can make a bequest to charity.

The testator can nominate an executor or personal representative to carry out the terms of his will during the probate process.

The executor can be granted specific powers in the will that he or she would not otherwise have under state law, e.g., the power to continue operating the decedent's business.

A will provides an opportunity to make the best use of the unified credit and the marital deduction.

A will may be used to provide income for the care of a mentally or physically handicapped child, parent or spouse.

A will can provide for the close-in-time deaths of spouses, which may affect distribution of assets.

The will can describe how estate settlement costs are to be paid, so they are not charged against particular heirs or bequests.

Testamentary Capacity

"Testamentary capacity" simply means that a person must be--

of sound mind, and

of the minimum legal age to execute a valid will.

Sound mind

The testator must be of sound mind at the time the will is executed. If the testator subsequently becomes of unsound mind, the validity of a previously made will is not affected. Whether a person was of sound mind when a will was signed is a factual question that a court may ultimately have to determine.

Legal age

Most states set 18 as the minimum age to make a valid will. This age is often the same as the age of majority, but a few states are exceptions.

Click here to check the minimum age for any particular state.

Fraud, Duress or Undue Influence

The testator must not have been under duress, undue influence or some type of fraud at the time the will was executed. If this can be proven in court, the will may be thrown out. Click here for an example.

Legal Formalities

Wills generally should be typewritten. An oral will (called a nuncupative will), recited by the testator in front of witnesses, may be accepted as valid in some states if it is an accepted form under state law, pronounced during the testator's final illness, reduced promptly to writing by the witnesses, and filed promptly with the probate court.

Obviously, it's not wise to wait this long and hope that all the witnesses hear the same thing.

A will in the testator's own handwriting (called a holographic will) may also be accepted as valid in some states. However, the testator's handwriting may be illegible, or his intentions may be expressed in a confusing or inconsistent manner.

State law usually requires two or three adult witnesses to witness the execution of the will. If a will is contested in court, witnesses may be called upon to describe the testator's state of mind and the actual circumstances surrounding the execution of the will.

Revocation of a Will

A will can be revoked by the intentional physical destruction of the will or by the execution of a subsequent will. However, the testator must be of sound mind at the time either of these events occurs to accomplish the revocation.

The law "forces" a revocation. For example, marriage revokes a prior will of either spouse in most states. In some states, divorce, annulment or the birth of a child also revokes a prior will.

Codicils: Amendments to a Will

A will may be amended by a legal document called a codicil usually when only minor changes in the original will are being made. Codicils must comply with all the legal formalities of wills including the "soundness of mind" rule. It's a good idea to review and update a will when--

the testator moves to a new state

the testator gets married or divorced

a child is born or adopted

the testator experiences a major change in financial circumstances or is affected by a change in law

the testator wishes to change beneficiaries, executor, guardian(s) or trustee(s).

State Law Restrictions on Disposition

State law imposes some restrictions upon the testator's disposition of his or her estate assets. For example, the surviving spouse can generally "elect against the will" if the testator leaves the spouse less than what she would have received if he had died intestate (without a will).

Similarly, children who are omitted from the will (called pretermitted children) are entitled to a child's intestate share in some states. This is also the case for children born after the will was executed.

A few states have so-called mortmain statutes which restrict the amount a testator may leave to charity. The purpose of these laws is to prevent the surviving family from being impoverished by the testator's generosity to charity.

Will Contest by Heirs

Heirs may challenge the validity of a will by initiating a will contest in probate court on a variety of grounds:

the testator was under duress, undue influence or fraud at the time of execution

the testator was of unsound mind or below the minimum legal age

the testator's signature was forged

the will was not executed in accordance with required legal formalities

the testator revoked the will.

What Is Intestacy?

If a person failed to execute a will or died without a valid will, he or she is said to have died intestate, and his or her property will be distributed under the intestate succession statutes of the state. These statutes do not take into consideration the decedent's unique personal situation, and the distribution is unlikely to be in total accord with what the decedent would have wished.

The intestacy statutes only take into consideration family relationships; they do not take into account such factors as taxes, administration costs, or estate shrinkage.

The Price of Dying Intestate

Suppose a husband has a wife and two minor children. If he were to die without a will, he would probably be shocked to learn that, in many states, his wife would only receive one-third of his probate property. The other two-thirds would go to the children under the intestacy laws.

Suppose a widow leaves two children, one healthy child and one with a physical handicap. A will could recognize the greater needs of the handicapped child, but the intestacy laws will treat the children equally.

Aunt Martha would like a brooch to go to her favorite niece. She can accomplish this by will, but the intestacy laws would not recognize Aunt Martha's intentions for specific assets.

The will allows the decedent to nominate an executor, but in the absence of a will, the court will appoint an administrator. This may or may not be someone the decedent would have named.

Intestacy can make estate administration more difficult, and that could translate into higher fees for the administrator of the estate and higher legal fees. The administrator will have the minimum powers granted by law, not the broader powers that could be extended by will. So, the administrator generally has less flexibility in dealing with estate assets, and this may result in loss of value or sale of estate assets at a liquidation price.

Special Rules for Children

An adopted child will normally take a child's full intestate share from the estates of both the adoptive parents and, in some states, from the estates of the natural (biological) parents.

A child born after the death of a parent will also take a child's full intestate share from the estate of the deceased parent.

Illegitimate children in most states will take a child's full intestate share from the mother's estate, but not the father's estate unless

the father has acknowledged the child as his,

a court has ruled him to be the father, or

the father married the mother after the child was born.

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