Back Wills Law:  Everything You Need to Know

Wills Law:  Everything You Need to Know

Most of us do not want to think about our mortality. However, we cannot escape the reality that every living person will  one day die. Whether we like it or not, the property we own at our death will be inherited by another person or entity. If we do not leave a will directing who we want to inherit our property, the law of the state we live in will make the decision for us. Here, we will examine how state intestacy laws impact our assets at death and explore why most of us need to take the time and effort to create a last will and testament (in case you start without a ready-to-go Will Template). Keep reading if you are wondering about wills law, probate court, and how the legal rules will affect family members upon your death. 

Wills Law Explained

So, what is a will in law? A Last Will and Testament is often referred to simply as a “will.” A will in law means that the document purporting to be a will actually meets the legal definition for a will in the state where it is executed. Each state has a law of wills that sets forth the requirements for creating a valid will. The person who creates a legal will is called a testator. A testator creates this legal document to express his or her wishes, within the legal limitations set by law, for how he or she wants the property to be transferred upon the testator’s death. If the will document does not follow the legal requirements of the jurisdiction it was executed, it may be found invalid, resulting in the testator’s wishes not being followed and the assets being transferred in a manner not intended. If there is no valid will, the assets will be transferred according to the intestate laws of the state in which the decedent lived at the time of his or her death. 

A will should express the testator’s preferences for how to transfer the testator’s property, as well as any other preferences the testator may wish to make known. A will is considered to be one of the most important legal documents a person should create during his or her lifetime. 

Why You Should Have a Will

Most people, if not all, should have a will. It is important to fully understand the law wills of the state in which you reside, which can be more complicated than you think. For that reason, you should consult an experienced estate planning or probate attorney. Some testators may be concerned about the tax burdens that their estate may have on their heirs. Knowing whether any tax will be owed on your estate and how much that tax burden may be is important when planning how to divide your assets upon your death. 

Some testators may also be interested in naming a guardian for their minor or incompetent children in their will. Others may want to disinherit certain individuals who would otherwise be considered heirs under the laws of their state. Each state legislature has prescribed laws about what a testator is permitted to dictate in a will. Some states have specific laws related to disinheriting spouses or dependent children. Be sure to discuss with your attorney whether you and your spouse have a nuptial agreement, as this could affect your property being considered community or separate and whether the law protects a spousal survivorship right to certain assets. A testator must understand the laws of his or her state and how these laws will affect the testator’s wishes. 

Types of Inheritance Wills

There are various types of wills that are considered legally valid. Each state has its own laws governing the types of wills it recognizes as valid within its jurisdiction. 

Holographic wills

A holographic will is a will that the testator writes out entirely by hand and must be dated and signed by the testator. The testator must make clear that the document is intended to be a will and that its purpose is to direct how his or her property is to be distributed upon the testator’s death. Holographic wills are not recognized in all states. It is crucial that a testator seek the advice of an experienced probate attorney to understand whether the state in which he or she resides recognizes holographic wills and what the requirements are to create one. 

Oral Wills

Oral wills are sometimes called nuncupative wills. They are not valid in most states, and even in states that have recognized them, they have done so in very limited circumstances. An oral will may be considered valid if a person was in immediate danger of death and did not have the ability to make a written will, in which case the testator orally conveys his or her wishes to credible witnesses who are present at that moment. Generally, an oral will should never be relied upon to properly transfer assets, as it is rarely accepted as valid.

Statutory or notarial wills

A statutory or notarial will is a written will created according to a state’s statutory law and is usually executed before a notary and witnesses. It must be in proper form as set forth in the state’s civil code. It is highly advisable that you seek the guidance of a competent attorney in your state to ensure that your statutory will contains all the necessary terms and provisions, and is executed according to law. 

Do it yourself will template

If you are convinced that you want to create your will without the help of an attorney, you should download the “Last will and testament template” as a starting point. Looking for the right format for last will and testament can be a challenging and time-demanding task, so just filling out the form and downloading your will in seconds can save lots of your valuable time. Lawrina's templates are made by professional attorneys and drafted to be easily customized by you. Also, Lawrina has customized templates to meet your state requirements. For instance, you can find Last Will and Testament Florida to ensure it is legally binding in Florida.

However, as it is still recommended that you consult an attorney, you may wish to take this template with you to discuss any provisions you need clarification or guidance on. 

What Does a Will Do and Not Do?

A will permits a testator to delineate his or her wishes for how  assets will be transferred upon his or her death. It may also allow the testator to express any specific wishes for burial, cremation, or memorial services. A will, however, cannot circumvent the law. Each state’s laws are different and some state laws limit the extent to which a testator can control assets after the testator’s death. For example, some states do not permit a testator to indefinitely restrict what the heirs can do with the inherited property. Consulting an experienced estate planning attorney can help you fully understand your options and limitations in creating your will. 

How to Execute a Will:  Step-by-Step Instruction

Proper execution of your will is essential. Follow these steps to ensure a validly executed will:

  1. Understand the wills law in your state by consulting an attorney.
  2. Determine who you want to inherit your assets upon your death.
  3. Determine who you want to appoint as the executor of your will.
  4. Create your will document.
  5. Carefully consider the terms of your will and make any necessary revisions.
  6. Have your will executed according to the laws of your state, which may require witnesses, a notary, and specific attestation language. 
  7. Periodically review your will to ensure that it still expresses your wishes.
  8. Consult an attorney any time you have a question relating to your will. 

Choosing an Executor for Your Will

Choosing an executor for your will is one of the most important decisions you may ever make. It is your appointed executor who will bear the responsibility of making sure your wishes are carried out after your death. Upon such an event, the executor should file the will with the court in the proper jurisdiction. If the will is found to be valid, the court will issue letters testamentary to your executor so that he or she may handle all the details of your succession. The executor will have the power to pay your death expenses and enter into a contract with other individuals or businesses as necessary for the proper handling of your estate. It is vital that you appoint a person whom you trust completely to be the executor of your will. 

How to Change a Will

As long as you are competent, you may create or change a will at any time. You may want to start all over with a new will, or you may want to make an amendment to a preexisting will. Either way, speaking with a competent estate planning or probate attorney will be helpful during the process of changing your will. 

Bottom Line

Most people should consider creating a will before their death. Without a will, state laws will determine who will inherit the property. These laws are called the laws of intestacy. Generally, assets are inherited by the decedent’s next of kin, including children or spouse. If you do not have any known relatives within a certain degree of relationship, the state could ultimately inherit your property. Therefore it is vital that you understand the consequences of not having a will at the time of your death, and what you may legally do with your property through the execution of a valid will. In short,an attorney experienced in estate planning or probate law will provide you with the best guidance to ensure that your wishes are followed as closely as possible.

Frequently Asked Questions

If I create a will and then move to another state, do I need a new will?
No, not necessarily. As long as the will still expresses your current wishes, you should not need to create a new will. If the will was valid in the state it was executed in, then it remains enforceable in the other states as well. It may be wise, however, to have your will reviewed by an attorney in the state you move to in order to ensure that your will still accurately reflects your wishes.
Can anyone create a will?
Most states require that a testator be an adult, usually at least 18 years old, and be otherwise competent. To have testamentary capacity, most states require that the testator understand the purpose of a will, that the document he or she is about to sign is a will, and that the will transfers his or her property upon death to the persons listed in the will. If a person is not able to understand these facts, the individual will not be considered competent to create or change a will.
Is it difficult to change a will if I change my mind on certain provisions?
No, it should not be difficult to change your will if you still have testamentary capacity. If you were deemed competent to create a will, then you can make changes to the will. You can simply create a new updated will, or you can draft an amendment to the preexisting will and have it legally executed according to the laws of the state in which the document is signed.
What will happen to my property if I don't have a will?
If you do not have a valid will, your property will be transferred according to the intestacy laws of the state in which you resided at the time of your death. Generally, your property will be transferred to your closest relatives; however, to get a more detailed understanding of how your property will be transferred, you should seek the guidance of an estate planning attorney.
How often should I update my will?
A valid will does not have an expiration date. It is highly advisable, however, to review your will periodically to ensure that it still expresses your current wishes. It is particularly desirable to review and consider an update to your will when you undergo significant life changes, such as: Marriage; Divorce; Birth or adoption of a child; Children reaching a certain age and level of maturity; Acquisition of new assets; Death of the person named in your will as your heir or executor; Retirement; Relocation to a new state or a retirement facility; and Any other major lifestyle change.
Can I name more than one executor in my will?
Yes. Many testators name two or more persons as co-executors in their will and require that they make decisions together. Testators may also wish to name a successor, or backup, executor in case their first choice is unable or unwilling to act as executor. Of course, it is prudent to first ask the person you want to name as executor whether he or she will accept the position.
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