Will

By James Parker
/
May 2, 2022

What Is a Will?

A last will and testament, often shortened to just “will,” is a legal document written by an individual that expresses their intentions for assets, dependents, and other aspects of their estate after their death. Wills are written by an individual before their passing and then executed after that individual passes away.

A will is most commonly understood as a vehicle to legally transfer property from the deceased to a beneficiary. The orders in the will be overseen and carried out by the executor of the will, who works with the probate courts to ensure all necessary laws are followed. 

Once the probate court verifies that a will is authentic, it will become the guiding document for the rest of the proceedings. If an individual dies without a will, they are declared “intestate.” Anyone who dies intestate will not be able to direct any assets to specific beneficiaries, nor will those would-be beneficiaries be able to petition the court for any assets of the deceased. Instead, the estate will be split up and distributed in accordance with state law.

Since an individual without a will or with an invalid will is considered intestate, it is vital that a will be correctly created. Different state laws have different requirements for proving that a will is valid but most require that the individual be above the age of 18 when they create it, they must be of sound mind and body, and the will’s signature must be witnessed by a certain number of unrelated witnesses.

Key Takeaways

  • A last will and testament is a legal document which explains how an individual would like their estate to be distributed and to whom after their death.
  • A will must meet state requirements to be considered valid. This may include specific formats, witnesses, notarizations, and state of mind requirements for the author of the will.
  • In addition to providing for distribution of assets, some wills can legally grant guardianship of minor children, establish how they would like their end-of-life care to be, and whether or not they will establish a trust.
  • If you want to establish a last will and testament, an experienced Trusts & Estates attorney may be able to improve the outcome of your case by utilizing experience and expert knowledge.

Wills, Trusts, and Estates

Wills are the cornerstone of estate planning. They are also incredibly versatile, taking on many forms and serving a number of functions. In the broadest sense, wills come in six, nonexclusive categories: deathbed, joint, living, pour-over, simple, and testamentary trust, and three formats: holographic, online, or nuncupative. 

Will Formats

A holographic will is one of the oldest types of will: handwritten. In the modern day, most wills are typed up and holographic wills are not recognized as valid unless they were created before the legislation that banned them. In the states that do recognize handwritten wills, there may still be requirements that the document become notarized or contain the proper amount of witnesses.

By contrast, online wills are the newest form of will available for use. While some, reputable companies do offer online will resources for an affordable price, or even no price, these wills are vulnerable to all of the weaknesses of any online file. They may be hacked, downloaded, edited, or deleted by a malicious individual. Even in cases where the will itself is not compromised by an outside force, a disingenuous company could sell estate planning software or resources that are fraudulent, inadequate, or just a scam.

Finally, there are nuncupative wills. These are wills that are delivered orally. This can be the most precarious of will formats as, unless it was stated in front of a court or recorded by some other method, it is entirely based on secondhand retellings. Most states do not accept nuncupative wills. New York will recognize nuncupative wills in certain circumstances, such as a soldier or sailor delivering it in the presence of at least two witnesses in an active combat situation. In general, nuncupative wills will not be considered by probate courts.

Will Categories

A deathbed will is one of the most controversial categories of will. As the name suggests, a deathbed will is established by the individual in a situation of extreme pressure, sometimes moments before death. Due to the precarious nature of the formation of a deathbed will, it can be argued that the author is under duress to create the will and potentially is not of a sound mind to be writing their will. A motivated individual could use these arguments to challenge the deathbed will’s validity in probate court, particularly if another, earlier version of the will existed. 

A joint will is a will that is shared between two or more people, most often spouses. A joint will usually contains a clause in which all assets are initially transferred to the surviving spouse before passing to the final beneficiaries after the death of the surviving spouse. This type of will can usually be adjusted while both spouses are alive, but once one passes away, the will often becomes irrevocable.

Living wills are a will that incudes not only wishes for asset distribution, but also end-of-life procedures for the author. A living will can include instructions for medical care, whether to admit to a nursing home, and whether to resuscitate in the event of certain medical incidents. Additionally, a living will may appoint an individual to act with power of attorney on the author’s behalf if they ever become physically or mentally incapacitated

Pour-over wills are a specific subset of wills that are designed to work in tandem with a living trust. Pour-over wills take any assets that are not designated for a specific beneficiary and funnel them into the living trust at the time of the author’s death. This works as an efficient clean-up tool for anything that the author forgot to designate to a specific beneficiary.

A simple will, sometimes called a basic will, is the most straightforward form of will. A simple will distributes assets directly to beneficiaries without many clauses, beneficiary restrictions, or strings attached. For most people, a simple will is all that they will need for their end-of-life planning. 

Finally a testamentary trust will is a will that establishes a trust at the time of the author’s death. Trusts can be a useful tool to give assets directly to beneficiaries while eschewing taxes or while maintaining privacy. 

Bottom Line

There are a number of wills, each with advantages and disadvantages. If you are planning to start planning your estate, you will need a trusts & estatest attorney.

An experienced trusts and estates attorney can sit down with you and explore a number of estate planning options, including the many kinds of wills, and help you choose the one that best meets your needs. Once you’ve chosen your will options and how you want to handle your estate, your trusts & estate attorney can ensure that all of the documentation will pass the probate court’s scrutiny and find the most efficient way to cut down on red tape that might keep your assets from reaching your beneficiaries.

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