Overview of a Will
A will is a document that states how a persons’ property will be distributed upon death. A will has to meet certain requirements in order to be valid under state laws. Any person 18 years or older and competent (i.e. having the necessary ability, knowledge, or skills) may make a will.
A will must be written and signed for it to be valid. Upon execution of a will there must be two persons available as witnesses. A will has to be executed in strict accordance of the laws of the state which the will is being executed in. Due to the strict conditions that must be followed, it is always a good idea to have an attorney oversee the signing of the will.
A will is not permanent in its effects; it may be changes as often as needed or wanted by the person who wrote it. Changes to a will are usually made through a codicil. A codicil is a document that is used to make amendments to previously executed wills rather than completely replacing the entire will. Some of the circumstances that arise which lead to the changing of wills are marriage, birth of children, divorce, changes in estate, etc. Any changes that are made should be made under the advisement of an attorney to ensure the changes will be valid.
A will does not have an expiration date. It remains in force indefinitely unless a new will is executed or codicil replaces the preexisting one. Also, if the person who wrote the will destroys it with the intention of revoking it, it is no longer effective.
In deciding who to dispose property to, the will writer is free to dispose of property in whatever way he/she wishes. However, there are some rights that are giving to spouses and children in regards to property that may not be able to be defeated through a will; therefore, everyone should consult an attorney within their own state to determine what the laws say regarding specific rights.
A will is not based on the amount of real or personal property that a person has. Everyone who owns real or personal property should have a will in place regardless of the amount of the estate.
When a person dies without making a will, they are considered to have died intestate. Therefore, the property of the deceased will be distributed to the nearest family members according to the guidelines set out by state law. Thus, a person who does not make a will would not have any say so in how their probate property will be distributed.
Writers of will may name the person they would like to manage their estate. This person is called the executor. In the absence of a will, the probate court will appoint someone to handle the estate. This may be someone the decease knows or it may not, but they will be the administrator of the estate.
In most situations, the best idea when drafting a will is to seek the advice of an attorney. This can provide assurance that one’s final wishes are being followed through.