Wills — Legal Requirements & Limitations
Wills are the most popular way for individuals to decide how their estates will be handled when they die. It is nonetheless estimated, however, that at least 70 percent of Americans do not have valid wills. When a person dies before he or she has had a chance to prepare a will, the person has died intestate. The state will divide his or her property according to its laws of intestate succession.
The author of a will is called the testator. When the testator passes away, a court will follow his or her will to determine how to divide his or her assets or property. For example, the testator may direct that a personal residence, automobile, furniture, furnishings, household items, clothing, and jewelry be given to a particular person, or devisee. Some people use wills to articulate their most heartfelt feelings towards their friends and family. A properly executed will alleviates the grieving process for survivors by transferring property efficiently and circumventing tax burdens. While it is not easy for people to envision their mortality, many find tranquility from settling their future assets.
Wills vary from simple page-long documents to comprehensive volumes, depending on the magnitude of the estate and the testator’s preferences. Wills first designate the estate and the devisees. They can also include unique instructions regarding the care of children, gifts to charity, and the formation of trusts. Some testators choose to disinherit individuals who might have taken under intestacy laws. In order to ensure that a testator’s wishes are properly executed, it is necessary to follow the applicable legal rules.
Formal will requirements vary by jurisdiction. The most basic formalities include that the testator has capacity, that the will is in writing, that the testator has signed it, and that the signing is witnessed. A properly executed will remains effective unless it is revoked or replaced by a valid subsequent will. Wills can be altered via a “codicil” without being entirely rewritten.
Some legal limitations may thwart the testator from giving complete effect to his or her desires. For example, some laws forbid decedents from disinheriting spouses or minor children. Typically, a married person cannot wholly disinherit his or her spouse without that person’s consent, usually via a nuptial agreement. In most states, a surviving spouse has the right to take a pre-determined percentage of the estate if he or she is discontented with the will. Desires to disinherit those legally permitted—such as non-dependent children—must be plainly stated to avoid potential legal challenges or confusion.
A will typically appoints an “executor” to perform the testator’s wishes after he or she passes. Testators typically choose a relative, although this is not a requirement. The executor should be apprised of his or her responsibilities before the testator’s death in order to be prepared. The executor manages the testator’s assets, collects debts owed to the testator at his or her death, handles property and real estate, and files required court and tax documents.
When a person dies without a valid will, a probate court must divide the estate using legal rules, which is often a complex, time-consuming, and costly process. The court first pays unpaid debts and death expenses. The rules then depend on whether the deceased person has a surviving spouse or children. If the testator dies without a surviving spouse, children, or grandchildren, the estate is divided among distant relatives. Thus, intestacy may result in people unknown to the testator receiving sizable portions of the estate. And, since state intestacy laws only recognize blood relatives, friends and charities cannot receive anything. If no blood relatives are located, the estate normally goes to the government. Intestacy laws also involve substantial tax burdens. For these reasons, it is advisable that every individual prepare a will with the help of an experienced attorney.
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