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LAST WILL and TESTAMENT INFORMATION
This page is about
wills, last will and testament, simple wills, legal will, making a
will testament, how to make a will and will estate. There are many advantages
if you make a will since making a will in relation to
estate
planning, probate law, retirement
plan, disability, and death. Wills are the legal declaration of a
man's intentions regarding the disposal of his property, and other
things what he wills to be performed after his death. The full
expression is "last will and testament" of which "will" or
"testament" are synonymous, and are used interchangeably by lawyers.
What are the elements of a
legal will?
Here are the five essential elements of a valid will.
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The testator must have testamentary capacity (capacity to make
a will), and be of sound and disposing mind. Infants, because of their tender age, and married women, on account of the supposed influence and control of their husbands, have no capacity to make a will,
except at common law where infants (males over 14 years and
females over 12 years) may dispose of their personal estate.
This rule in relation to infants is not uniform throughout the United States.
Persons devoid of understanding, such as idiots and lunatics,
are incapacitated and therefore cannot make a will.
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The testator at the time of making his will must have animus
testandi, or intention of making a will. If there is no real
intention to make a will, but the testator did so jokingly, then
the element of animus testandi is lacking and the will is
invalid.
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The mind of the testator in making his will must be free, and not moved by fear, fraud or flattery. In such cases the will is void or at least voidable.
By voidable we mean that the will is considered as valid until
proven void by the court.
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There must be a recipient, a person capable of taking; for to render a devise or bequest valid there must be a donee in esse, or in rerum natura, and one that shall have capacity to take the thing given, when it is to vest, or
otherwise the gift shall be void.
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It must be put in proper form and may be of
these types of wills.
A written will must be,
a) Written on paper or parchment; it may be in any language, and in any character, provided it can be read or understood.
b) It must be signed by the testator or some person authorized by him; but a sealing has been held to be a sufficient signing. And it ought to be signed by the attesting witnesses. Anybody who is a beneficiary under a will cannot witness it, and anybody who is a near relative of a beneficiary would also normally be precluded. A witness can be related to the testator provided that he or she is not a beneficiary or a near relative of a beneficiary. In some states three witnesses are required, who should sign the will as such at the request and in the presence of the testator and of each other. This formality should generally be pursued, as the testator may have lands in such states which would not pass without it.
c) It must be published, that is, the testator must do some act from which it can be concluded that he intended
(animus testandi) the instrument to operate as his will.
d) To make a good will of goods and chattels there must be an executor named in it, otherwise it will be a
codicil only, and the party is said to die intestate (without a
will); in such a case administration must be granted.
A nuncupative will or testament, is a verbal declaration by a testator of his will before a competent number of legal witnesses.
Before the statute of frauds they were very common, but by that statute which has been substantially adopted in a number of the states, these wills were laid under many restrictions.
In New York nuncupative wills have been abolished, except made by a soldier while in actual military service, or by a mariner while at sea.
It is a rule that the last will revokes all former wills. It follows then that a man cannot by any testamentary act impose upon himself the inability of making another inconsistent with and revoking the first will.
A will voluntarily and intentionally made by a competent testator, according to the form required by law, may be avoided, 1st. By revocation and 2d. By fraud.
Among the civilians they have two other kinds of wills, namely: the mystic, which is a will enveloped in a paper and sealed, and the witnesses attest that fact, the other is the
holographic; which is wholly written by the testator himself.
A document under which a will maker (testator) states his or her intentions regarding: the persons (beneficiaries) who will receive the will maker's property, the person or entity (executor) who will carry out the will maker's wishes, and, if necessary, the person (guardian) who will care for the will maker's minor children; In general, any instrument, executed with the required formalities conferring no present rights but intended to take effect on the death of the maker, which contains his intention respecting the disposition of his property.
Many people wonder if they really need a will. They
may think that they don't have enough assets to bother with a will.
Some people erroneously believe that a will causes your heirs to
have to go through probate, leading to unnecessary expenses.
However, a will is a good idea for just about everyone. Read on for
some of the reasons to have a will.
A will is a document in which a person declares what he wants done
with his property at the time of his death. A will has no effect
until the person who wrote it, known as the testator, dies. The
testator can also revoke a will at any time prior to his death.
If you die without a will, the state will distribute your property
to your heirs according to the state's intestacy statutes. The
statutes might call for a distribution that is similar to what you
want. Then again, maybe they won't.
State intestacy laws will provide how the sum total of your property
is to be divided among your heirs. It can't provide for who will get
certain specific items of your property. This can lead to many
problems. Your heirs may not agree on who will get certain items of
your personal property. For example, say you have inherited your
grandmother's wedding ring and intend to pass it on to your
daughter. If you die without a will saying that is what you want,
your son may feel very strongly that his wife should have it. So
even if you don't have a lot of assets, you may be concerned about
making sure that certain items of your property go to the people
that you want it to. You can do this with a will.
Another misconception about having a will is the idea that having a
will causes your heirs to have to go through probate, and that it
will be difficult and expensive. If you die without a will, the
court is still going to have to oversee the distribution of your
assets to your heirs. There is absolutely no reason to think that
this process is made easier or less expensive by your not having a
will. In fact, it will probably be more expensive. For one thing,
whoever administers your estate will probably have to post a surety
bond if you don't have a will. If you do have a will, not only can
you choose the person who will administer your estate, you can
provide that he or she will not have to post a surety bond.
Do you have minor children? If so, you really need a will. If you
don't have one, the probate court will have to set up a
conservatorship to manage your children's share of your property. A
judge will decide who manages the money. When each child turns 18,
he or she will get his share, whether they can handle it or not. If
you have a will, you can decide who will manage your children's
inheritance on their behalf and you can choose the age at which you
want it to be distributed to them.
Even if your estate is small, there are good reasons to have a will.
You should see an attorney who practices in the area of estate
planning or wills and trusts. This attorney can also help you decide
if you need more advanced estate planning techniques and help you
implement an estate plan that is best suited to your needs.
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