Wills Law & Legal Definition


WHO CAN MAKE A WILL?

State laws vary but generally provide that a person must be at least 18 years of age to execute a Will. Some states provide that a person 16 years old may execute a will.

HOW IS A WILL SIGNED PROPERLY?

Again, state laws vary. Most require two witnesses. Your best option is to read the Will attestation clause on the will for your state and comply with what it states. In most states, the execution is proper if the maker signs the Will in the presence of both witnesses, declares that he signed it and requests that the witnesses witness his or her signature and the witnesses sign in his presence and in the presence of each other. Most laws also provide that the witnesses not be heirs or interested in the estate.

Many of the wills also contain Self-Proving Affidavits which allow for easier probate. In such cases, a Notary Public is also necessary to notarize the will and the make and witnesses must be in the presence of the notary.

DO I FILE THE WILL?

State laws do not require that the will be filed and most do not have a procedure for filing Wills prior to death. In those states that do allow a Will to be filed prior to death, most are filed with the probate clerk or recorder of documents.

WHAT PROPERTY PASSES BY WILL?

All your property Will pass by your will except property which is to vest in others by other instruments. Examples are:

  1. Real estate in some states that is owned by joint tenants passes to the survivor with or without a Will and
  2. Life insurance proceeds go to the named beneficiary.

WHAT DO I NEED TO KNOW TO COMPLETE A WILL?

  1. Names of the persons you desire to inherit part or all of your estate.
  2. Trustee of the trust contained in your will if your children are minor children.
  3. Guardian of minor children in case both parents are deceased.
  4. Executor or personal representative to administer your estate.
  5. Generally how you desire your estate to be administered and who is to receive same.

ESTATE TERMS:

  1. Testator - a person who dies leaving a will. Female=Testatrix
  2. Executor - a person named by a testator to execute or carry out the instructions in a will.
  3. Trustee - to commit to the care of a trustee: to serve as trustee
  4. Heir - one who inherits or is entitled to succeed to the possession of property after the death of its owner: as one who by operation of law inherits the property and esp. the real property of a person who dies without leaving a valid will (used in jurisdictions whose law is based on English common law) (called also heir at law, heir general, legal heir)
  5. Issue - one or more lineal descendants. Example: died without living issue. Children.
  6. Devise - to give (property) by will. specifically: to give (real property) by will.
  7. Bequeath - to give by will (used esp. of personal property but sometimes of real property).
  8. Beneficiary - a person or entity (as a charity or estate) that receives a benefit from something: as the person or entity named or otherwise entitled to receive the principal or income or both from a trust.
  9. Probate - to establish (a will) as valid through probate.
  10. Maker - Person who makes a will.

As traditional distinctions between “paper” and “electronic” documents continue to be eroded by developing technology, it will almost certainly be necessary to give formal recognition to electronic wills. In the United States, a few states have omitted the wills exception from state analogs to Electronic Signatures in Global and National Commerce Act (ESIGN), adopted in 2000, and Nevada has expressly provided for electronic wills.

In some cases, a person will enter into an agreement to provide for someone in their will, in exchange for something, such as the services of a caretaker. Such contracts should be in writing and meet all the elements of a contract to be enforceable. For example, a promise to make a will, where no consideration is shown, will not be enforced.

The following is an example of a Connecticut statute dealing with making a will:

"A will or codicil shall not be valid to pass any property unless it is in writing, subscribed by the testator and attested by two witnesses, each of them subscribing in the testator's presence; but any will executed according to the laws of the state or country where it was executed may be admitted to probate in this state and shall be effectual to pass any property of the testator situated in this state."