1.0 What is a will?
A will is a legal document created to provide instructions on how an individual’s property and custody of minor children, if any, should be handled after death. The individual expresses their wishes through the document and names a trustee or executor that they trust to fulfill their stated intentions. A will can be used to distribute real property including land as well as movable property such as money, shares in a company, intellectual property and personal effects.
It also indicates whether a trust should be created after death. Depending on the estate owner’s intentions, a trust can go into effect during their lifetime (living trust) or after their death (testamentary trust).
A will provides certainty to the surviving members of the deceased’s family, by distributing the property of the deceased according to his wishes. It prevents or minimizes family disputes that are likely to arise during division of property.
2.0 Determination of Authenticity of a Will
The authenticity of a will is determined through a legal process known as probate. Probate is the first step taken in administering the estate of a deceased person and distributing assets to the beneficiaries. When an individual dies, the custodian of the will must take the will to the probate court or to the executor named in the will within 30 days of the death of the testator.
The probate process is a court-supervised procedure in which the authenticity of the will left behind is proved to be valid and accepted as the true last testament of the deceased. The court officially appoints the executor named in the will, which, in turn, gives the executor the legal power to act on behalf of the deceased.
3.0 Significance of a will
If you own property and assets, you may want to have a will. That way you, rather than your state government, can decide who gets your property and assets when you die. In most cases, wills are written legal documents, but some states do recognize other types of wills.
4.0 Legal requirements of a Will to attain validity.
The legal requirements of each state can vary, so it’s essential that your will is drafted and executed properly.
A Will Must Meet All Legal Requirements – Most wills are formal documents that instruct how money and property should be distributed to each person named as an heir. For a will to be valid, you usually need to have one or two people witness you signing the will and then sign it themselves.
Your Will Does More than Name Heirs – The main reason for having a will is to allocate your property to heirs in any way you like. But there are other things you can include such as funeral arrangements, legal guardians for your minor children, and who should serve as executor of your will or trustee of any trusts you create.
A Will Prevents Intestate Succession – When you die without a will, state laws known as “intestate succession laws” will decide which family members will inherit your estate and in what proportion.
A Will May Eliminate Family Conflict – The division of an estate after death comes with many emotions. The slightest differences can result in hurt feeling and recriminations. As divorce becomes more complex and blended families more common, dividing assets has become even more complicated. A typical situation is when you’re in a second marriage and have children from your first marriage. In this case, allocating your property purposefully between your second spouse and your children can give you peace of mind and prevent your family from fighting over your possessions.
5.0 Essentials of preparing a valid will
The specific requirements for a will depend on law.
Commonly, the will must be in writing, signed by the person whose will it is (the “testator“) and witnessed by (usually) two persons however an oral will is valid if made at least three months before the death of the testator or a person in Armed Service/ Military Service.
The testator normally must have attained the age of majority, and must be of “sound mind” at the time the will is executed.
The witnesses normally MUST be “uninterested”, meaning they’re not beneficiaries of the will.
Witnesses also must be competent persons.
A will normally doesn’t need to be notarized, but a document called a “self-proving affidavit” might be created to provide further legal strength to the will.
A will may be changed or amended if the testator is competent. A new will or a “codicil” can be executed to create a new scheme for disposing of the testator’s property.
The court can change a will also. This is commonly done when there has been a divorce. Usually a divorce terminates the ex-spouse’s rights under a will, unless a contrary intent is clearly shown. A separation doesn’t terminate a spouse’s rights under a will. The specific impact of divorce on an existing will depends entirely on the law.
A will may also name guardians of children who are left by the deceased. This is another valuable benefit that a will can provide. However, a Court is not bound by the naming of a guardian in a will. The Court will certainly consider it, and it’s often the only way to make your wishes known after you’ve died.
Testamentary freedom allows for one to dispose of their property as they wish but this is limited to legal and appropriate means. So if you indicated that all your property should be collected and burned, the law might not give effect to that part of your will. One won’t be able to avoid protections given to others by act of law, either. This can include your spouse’s rights against the estate, community property protections, and special protections for children.
More than one person can be appointed as executors in the will. Having more than one representative can create problems during probate, however. Normally they will have the same powers to act, and this can create conflict. The nomination of two or more executors/representatives should be carefully considered.
A will may be contested. A person contests a will by filing the relevant documents with the probate Court. The person normally must be “interested” that is, must be an heir under the will or at law. There are time limits for contesting a will. You must have grounds to have a chance of successfully contesting a will. Unhappiness with the proposed distribution of property is not a valid ground. Valid grounds depend on law. Incapacity, fraud, undue influence and duress are the most common grounds.
The representative of the estate normally must provide notice of probate to all interested parties, and they can obtain a copy of the will from the probate Court.
6.0 Is the will invalidated where certain parts are not valid?
The invalidity of certain parts of the will may not invalidate the entire will. For instance, where the testator gave out property that does not belong to him, then such a gift cannot pass to the intended recipient.
This only invalidates that specific gift but does not affect the entire will. The courts have power to alter the contents of a will under certain circumstances.
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