A will is a legal document to be used as a road map for survivors of someone who dies. The map is designed to instruct an executor or personal representative of the decedent's estate on the desired transfer of wealth and property from the decedent to inheritors and beneficiaries.
The language in a will provides a probate court with the means to determine the testator's intentions and how those intentions should be carried out. A will allows someone to decide not only who will inherit money and property but also how minor or disabled children or even pets will be cared for and/or how their bequests should be managed.
While a will is irrevocable after death, it is considered "ambulatory" during someone's lifetime, meaning it can be changed or revoked at any time and as often as wished. There are no specific words that must be used to create a will, although its language should always be clear and direct. While wills can be self-written, it is advisable to have them prepared by a qualified lawyer who understands a state's probate laws and procedures, and has experience handling the disposition of estates.
It's generally accepted that having a will in place is smart financial planning. They aren't difficult to create and aren't particularly expensive. However, as many as 56 percent of Americans today don't have one.
If a person dies "intestate" — without a will – specific individuals or institutions cannot be designated as the appropriate inheritors of one's estate. A probate court must make those determinations under specific statutory guidelines.
The History of Wills
Wills have been around since the first days of recorded history. Archeologists found 4,500 year-old hieroglyphics in Egyptian tombs that narrate how property should be left to others. In America, laws about the writing and executing of wills are based upon English law that evolved over many centuries.
In the Middle Ages, ecclesiastical (church) courts in England permitted oral wills, called testaments, to determine how personal property could be left to a decedent's spouse, child or another person. Real property passed automatically to the eldest son under the tradition of primogeniture until 1540 when the Statute of Wills was passed by Parliament, allowing individuals to transfer such property to a different inheritor.
English law was further amended by the Statute of Frauds in 1677 and the Wills Act of 1837. While American practice derives from these laws, individual states promulgate their own statutes and procedures, and their courts have wide latitude to dispense with statutory formalities when necessary. For example, a judge can determine that even if a will is not executed perfectly, it can still be considered valid if clear and convincing evidence of the testator's intent can be proved.
What Goes into a Will
Wills are generally divided into clauses: an introductory clause, a personal representative clause, a personal property clause, a real property clause and one or more other miscellaneous clauses. This gives a consistent structure for a probate court to evaluate the will for an executor to follow its direction.
The introductory clause contains the legal name of the testator and his or her domicile state. It will also usually contain language attesting to the mental competence of its author and a statement that the will has been written freely and not under force or duress.
Personal Representative (Executor) Clause
The estate's executor or personal representative clause usually identifies a spouse, close relative or friend of the decedent who is nominated to administer the estate and make all the necessary arrangements with which to carry out the will's intentions. Unless challenged by another "interested person" or found incompetent to serve by the court, the named executor is almost always appointed by the probate judge to serve.
Personal Property Clause
The personal property clause lists all of the decedent's tangible and intangible properties and to whom they should be bequeathed. Specific gifts and/or amounts of money should be listed as clearly as possible to avoid confusion or conflicting claims by various beneficiaries - a spouse, other family members, friends, charities, etc.
Real Property Clause
The real property clause lists homes and other real estate and to whom those properties should be bequeathed. It is important to remember that according to most states' probate codes, a primary residence, or homestead, will always be awarded to a surviving spouse, regardless of what may be stated in a will.
Other Clauses in a Will
Other clauses might name a guardian for minor children who would then be responsible for their care if the testator and his or her spouse both die before their children turn 18. A guardian can also be named to manage any assets given to minor children until they reach their majority.
A residuary clause determines who receives assets not specifically listed in any other clauses, assuming there is property left over from the estate after debts, taxes, court fees and other expenses have been paid.
What Makes a Will Valid?
The validity of a will is always left up to a probate court. There are three states for a will: testacy, intestacy and partial intestacy.
Testacy is the condition of having a valid will. Intestacy is the condition of having an invalid will, which then requires the court to determine who gets what. And partial intestacy is the condition of having a will that has certain parts which are valid and certain parts that are not.
For a will to be considered valid, meaning that the court will admit it into probate, it generally has to satisfy the following conditions:
In most states, the testator has to be at least eighteen years of age, or married
The will must be written
The will must not have been written under force or duress
The testator must be of "sound mind," meaning that he or she is mentally competent and understands what he or she is doing when writing the will; knows the general nature of the property being left behind; and knows the objects of one's "bounty" (spouse, descendants, etc.)
The will must be properly signed and dated
The will must be properly witnessed
The will must be properly executed, meaning it needs to be introduced lawfully to the probate court and not superseded by an earlier or subsequent will
The will's language must be precise and unambiguous. The probate court can invalidate any part of a will that is not clear.
Types of Wills
There are several types of wills. They include:
Simple Will – outlines the distribution of an uncomplicated estate and makes up the majority of wills that are written and executed
Testamentary Trust Will – sets up one or more trusts into which some estate assets will go after death
Pourover Will – outlines which assets go into a living trust that was set up during the decedent's lifetime
Holographic Will – a handwritten will that is signed but not witnessed; accepted by only about half the states
Oral (Nuncupative) Will –a will that is not written down, but merely repeated and verified by a witness; only a few states accept them
Joint Will – one that covers the last will and testament of both spouses
Soldier's or Seaman's Will – usually only valid during wartime, it outlines the wishes of an active duty servicemember, regardless of his or her age
Statutory Will – a standard legal form that a testator can download and complete by filling in information; it is only accepted in a few states
Foreign Will – one that is written in a state or country different than the testator's last domicile
Self-Proved Will – one with an attached affidavit signed by a notary public stating that the will was properly signed and witnessed and that it is the will of the person who signed it. Many states allow such wills to be probated because it avoids the difficulties of having to track down witnesses to appear in court.
Living Will – not a will, per se, because it doesn't dispose of property, but merely lists an individual's advance medical directives
Things That Can't Be Placed in a Will
A will only affects assets solely owned by the decedent at the time of death and ones that don't have a named beneficiary. Some things can't be bequeathed in a will. Those include:
Cash proceeds from an insurance policy with a named beneficiary
Assets held in a retirement plan, such as an IRA, 401(k) or a pension plan with a named beneficiary
Property owned as a joint tenant with right of survivorship, such as real estate, bank accounts, stock portfolios, etc.
Pay-on-death (POD) accounts that transfer ownership of a bank account to a named beneficiary
Transfer-on-death (TOD) accounts that transfer ownership of stocks or bonds to a named beneficiary
Assets held in a revocable living trust, which must be distributed according to the instructions in the trust document regardless of instructions in a will
Also, a will generally cannot:
Disinherit a spouse
Bequeath property on a conditional basis. For example, one cannot leave a sum of money to a son or daughter only if he or she gets married or changes religions
Leave property or money to a pet
Changing or Revoking a Will
Wills can be changed or amended at any time through a codicil – a legal document drafted and executed with the same procedure that applies to wills. A will can be altered to reflect new information or situations, such as:
When there are major changes in a family
When the value of assets increase or decrease significantly
When named beneficiaries die
For any reason that the testator deems important
Writing a New Will
You can establish new wills by revoking a previous will and replacing it with the new document. Just like its predecessor, the new will must be written, signed and witnessed for it to be a valid replacement. If conflicting wills exist, the court will decide which one should be admitted to probate.
Dependent Relative Revocation
Many jurisdictions exercise a doctrine known as dependent relative revocation. This occurs if, for any reason, the revocation of a will, or part of a will, was based on a mistake of law on the part of the testator, or if a new will is mistakenly believed to be more valid than a previous one.
For example a judge may decide that a new will is invalid and can reinstate the former will if the judge believes that the testator would have preferred the old one to intestacy.