There are many misunderstandings about what a will can and cannot do. A will is just one part of an estate plan, and it can be a simple or complex document.
What is a will? As described in a recent article from USA Today, “Preparing a will: What you need to know about estate planning documents, laws,” a will is a legal document that is created to for the express purpose of distributing assets of the deceased and that names the person who will be the executor, who is in charge of managing the distribution of assets. That’s the simple description.
A person must have testamentary capacity or sufficient capacity to execute a will. Adults are usually presumed to have that capacity. A person challenging a will must show that the person lacked sufficient capacity.
There are two types of wills. A holographic will is one that is self-written and doesn’t meet the requirements of state law. In some states, this makes the will unenforceable, but other states allow holographic wills, if certain conditions are satisfied. A nuncupative will is an oral will, and most state don’t recognize these wills as enforceable (but there are exceptions).
If you are said to die intestate, it means that you passed away without a valid will in place before your death. With no will, state intestacy statutes dictate who receives what portion of your assets and property that does not otherwise have a surviving joint owner or a designated beneficiary.
You may have heard of the term “codicil.” That’s an amendment of an existing will.
It’s smart to work with an experienced estate planning attorney, because there are plenty of state-specific wrinkles and tax ramifications that may not be apparent.
For instance, if you get divorced and remarry years later, and your intent is to have all of your assets pass to your children from your first marriage, you might think that since your will doesn’t name your new spouse, he or she can’t inherit from you. That’s wrong. You need a new will.
Some state laws say that a “pretermitted spouse” (a spouse not named in the will) is entitled to a share of the estate—unless the will expressly states that he or she isn’t to inherit. Nonetheless, even where the spouse is disinherited by the will, almost every state provides that a surviving spouse has the right to take a statutory share of the deceased spouse’s estate.
To be sure that your wishes are followed and that your family is protected, make an appointment to sit down with an estate planning attorney who will be able to help you create an estate plan, including a will and other important documents. You don’t want to have your family dealing with a will that the court deems invalid or that someone can easily challenge.
Reference: USA Today (October 3, 2018) “Preparing a will: What you need to know about estate planning documents, laws”