When a person dies, that person’s estate is distributed to his or her heirs. It is in everyone’s best interest for each person to have a will, which states exactly how the deceased wants his or her estate to be distributed and who will receive each piece of property. With a will, the wishes of the decedent can be carried out with clarity and certainty instead of relying upon the government to decide how to divide the property.
Most states will require a probate proceeding in order to transfer the deceased person’s (or the “decedent’s”) possessions legally. When there is a probate proceeding, an “executor” who should have been named in the will, carries out the wishes of the deceased and distributes the property to those stated in the will. If an executor had not been previously named in the will, the court will appoint one. When there are no heirs that can be determined as prescribed by law, the property becomes the possession of the government (the process is also known as "escheatment".) In America, it is estimated that a very high percentage of people die without having a will.
Some states will not require probate proceedings when the deceased has a legally recognized will that states to whom the property will be distributed and when there is little doubt of the decedent’s intentions. It is most common for decedents to request that their property go to their spouse and children. If the spouse has preceded them in death, the children are frequently next in line to inherit the entire estate. In a case of intestacy (lack of will), a probate proceeding is usually required by law to determine how the estate will be disposed.
How to Legally Make a Will
The best time to create a will is now since there are primarily only benefits to having a will and potentially serious detriments in not having one. You have the right to change your will at anytime during your life and will likely do so as your life circumstances change. For example, when you get married, divorced, remarried, having children or if you receive a windfall or large inheritance, you will probably change your will to reflect this difference in your life.
While it is simple to create a valid will, there are important laws and requirements. It is easiest to use an estate lawyer to draw one for a fee and especially useful if your estate is complex. For many people, a standard will can be downloaded from which to create your own will and there is software that can walk you through the process. Your will requires witnesses and notarization in order to be legally recognized. Until you have a will, your estate is considered to be “intestate” and the probate court will decide how to divide and distribute your property.
There are specific requirements for a will to be valid and they can be different depending on state laws.
- Must be written: Most states will require that the will be in writing and that it be signed by the “testator” – the subject of the will. If it is handwritten, it must be written by the testator.
- Must be witnessed and signed, usually by at least two people. The number of required witnesses may vary from state to state. Check with an estate lawyer in your state for the exact requirements according to your state laws.
- Age - the testator must be 18 years old or a minor and married.
- Identification of the testator.
- Must contain a statement that the testator is acting freely, of their own opinion and not under the influence of others. This is also called on their own accord.
- A statement by testator that he/she is of sound mind.
- Witnesses to the will can not be beneficiaries of the will.
Drafting the Will
The testator can draft his or her own will – only an attorney can draft a will for someone else. Your friend or relative cannot legally draft a will for you. If you draft your own will, there is a possibility that it may be incomplete and therefore would not be valid under most state laws. You must be sure that any will form that you download or will kit that you purchase addresses all of your state’s requirements. If your will does not meet state requirements, regardless of your best intentions, it will likely not be recognized in probate courts. In such an instance, the state would distribute the estate as prescribed by law, regardless of what the testator’s wishes may have been.
Changing a Will – the Codicil
Wills can be changed after they have been drafted, signed and witnessed. Changes to an original will are made in a document known as a “codicil”. The codicil will take precedence over the old will and the new wishes for disposing of the testator’s property will be followed. Codicils are frequently created during or after a divorce so that the rights of the prior spouse can be terminated. Merely being separated does not terminate spousal rights in a will. State laws are specific regarding divorce and wills and it is important to be aware of them if you find yourself in a situation where you are separated and contemplating divorce.
Owning property together with another person is called joint tenancy. When one owner dies, the other co-owner attains full ownership of the property. There will be no need to go to probate court as this process is automatic. There may be tax consequences for joint tenants when one owner dies and you may wish to speak to a tax consultant about any implications of joint tenancy.
When someone dies without a will, state laws provides for a default manner in which an estate is distributed. The property is usually passed on to the spouse and children. In a case where the deceased was not married or did not have any children, the property is usually passes to the decedent’s (i) parents, (ii) siblings, (iii) grandparents, and (iv) children of grandparents, in that respective order. The property passes to the state government if there are no living relatives to take ownership of the estate. When the estate goes to probate, any creditors are paid first. Whatever is left after the creditors are satisfied is passed to the "distributees" under the will.
If there are minor children, the testator can appoint a guardian for his or her children. However, the court does not have to agree to the guardian, even if one is named in the will. Regardless, it is best to make your wishes known so that the court can consider them before making other decisions about guardians.
A Personal Representative (‘Executor’/’Executrix’ or ‘Administrator/Administratrix’) is a person whom you name or "nominate" in your Will to handle your estate. At times the court appoints a person to be a personal representative if there was no Will. The Personal Representative frequently will live in the same state as the testator did.
Personal representatives have certain duties to perform which includes ensuring that proper notices are given to all parties in the estate. The representative will be in charge of collecting the property of the deceased, receive claims against the estate, and will pay valid claims and dispute those in question. In addition, personal representatives distribute estate property to the proper recipients according to state law.
Stating Your Wishes to Dispose Your Property
A written will frequently includes directions on who shall receive property and, at times, how it must or should be used. However, a testator cannot void your obligations to your spouse and certain protections legally in place for children or community property. Most states will allow you to leave a list of how you want your personal property disposed. This allows you to change the list at any time without actually changing the will.
Contesting a Will
At times, the potential heirs and distributes of a will will seek to contest a will, for example charging that a relative unduly influenced the deceased to leave all his money to that person. Those who contest the will - only potential heirs - must file the necessary documents with the probate court. There is a statute of limitations in contesting wills and it can vary from state to state. Certain conditions must exist and these include:
- Incapacity of the testator - the testator was not able to execute his own will because of a mental incapacity
- Fraud - you can prove the will is not valid
- Undue influence and duress placed on the testator at the time of the writing of the will
Reading of the Will
There is no formal reading of the will required under state law. The executor or the representative gives notice of probate to the heirs. The heirs can ask for a copy of the will from the probate court.
Necessity of Probate Court
The reason it is necessary for an estate to go through probate court is to conclude the affairs of the deceased. Whenever there is real property to be disposed, it must be done legally and by someone who has the legal power to transfer the property into the name of the heirs. Probate court also insures that any income taxes or property taxes will be properly paid. Creditors will also be paid off by the probate court. The court will use the funds from the estate to pay off creditors. While simple wills can usually be done with a good will kit, for more valuable and complicated estates, it is highly advisable to use an experienced Estate Planning Attorney in order to minimize will contests and paying more estate taxes than are necessary.
Wills How to Draft a Will and Make Changes
By Michael Wechsler |
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