Wills | Estate Planning | Attestation | Revocation | Probate
Wills
In essence, a will is a written document which leaves the estate
of the person who signed the will to named persons or entities,
including shares or percentages of the estate, specific gifts,
and the creation of a testamentary trust.
A will usually names an executor to manage the estate, states
the authority and obligations of the executor in the management
and distribution of the estate, sometimes gives funeral and/or
burial instructions, nominates guardians of minor children and
spells out other terms. To be valid the will must be signed by
the person who made it, be dated and witnessed by two people.
If the will is still in force at the time of the death of the
testator, and there is a substantial estate and/or real estate,
then the will must be approved by the court, managed and distributed
by the executor under court supervision. If there is no executor
named or the executor is dead or unable or unwilling to serve,
an administrator will be appointed by the court. If there is
no estate, including the situation in which the assets have all
been placed in a trust, then the will need not be probated.
Estate Planning
Estate planning is the process by which an individual or family
arranges the transfer of assets in anticipation of death. An
estate plan aims to preserve the maximum amount of wealth possible
for the intended beneficiaries and flexibility for the individual
prior to death. A major concern for drafters of estate plans
is Federal and state tax
law .
Attestation
An attestation clause, or a clause certifying the proper execution
of the will, must usually be added after the testator's signature.
The following is a simple form of such a clause:
Signed, sealed, published, and declared by Jane Doe, the testator,
as her last will and testament in the presence of us, who at
her request and in her presence and in the presence of each other
have hereunto subscribed our names as witnesses.
As a rule, no particular form is prescribed by the various statutes
for the preparation of a will so long as the testator's intent
is in writing.
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Revocation
A will is revocable until the testator's death. The only exception
to this occurs when two parties simultaneously make mutually
irrevocable wills in which they name one another as their respective
beneficiaries and expressly give up the right to revoke their
wills. A testator may revoke his or her will by destroying it,
either by burning or tearing it up, or by obliterating the signature.
Any part or the whole of the will may be revoked by a codicil,
or an amendment to the will, executed with the same statutory
formalities as the will itself.
A valid later will revokes a prior will. Disposition of property
by the testator before death, as by gift or sale, is not a revocation
of the will, although its effect may be similar to one.
Marriage of the testator subsequent to the date of execution
of the will revokes the will as to the surviving spouse or children,
who are entitled to the same rights in the estate as if the testator
had died intestate, that is, without leaving a will.
Probate
No disposition of an estate is made after the testator's death
until the will is probated. The probate of a will is a court
proceeding up on notice to the heirs and next of kin. Questions
frequently arise about the construction of the terms of a will.
The most important rule of construction is that the intention
of the testator as it appears from the will shall be carried
out whenever legally possible; when the will is ambiguous, the
circumstances surrounding its execution may be examined in order
to ascertain the testator's intention.
The statutes of each state must be consulted as to restrictions
on a testator's disposition of his or her property by will. In
many jurisdictions a will may not exclude a surviving spouse.
The degree of participation of the spouse in the estate varies
from state to state. Many jurisdictions, however, permit a person
to exclude children from participation in the estate.
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