Will Laws: Understanding The Legal Framework Of Your Wishes

A will, or last will and testament, is a legal document that outlines an individual's wishes for their assets and dependents after their death. A will can be used to specify how an individual's belongings, such as bank balances, property, or possessions, should be distributed after their death. It can also be used to appoint guardians for minor children or adults with special needs and to specify the care of pets. In addition, a will can be used to leave gifts to charities or institutions.

The laws governing wills vary by jurisdiction, but there are some general requirements for a valid will. The testator, or person writing the will, must be of sound mind and aware of their actions. The will must be in writing and signed by the testator, and the signature must be witnessed by at least two adults who are not beneficiaries of the will.

It is important to have a valid will to ensure that an individual's wishes are carried out after their death. Without a will, the state or court will divide the individual's property according to intestate succession laws, which may not align with the individual's wishes.

Holographic wills

In the US, holographic wills are recognized in the following states: Alaska, Arizona, Arkansas, California, Colorado, Hawaii, Idaho, Kentucky, Louisiana, Maine, Michigan, Mississippi, Montana, Nebraska, Nevada, New Jersey, North Carolina, North Dakota, Oklahoma, Pennsylvania, South Dakota, Tennessee, Texas, Utah, Virginia, West Virginia, and Wyoming.

Some states that do not generally recognize holographic wills grant exceptions to members of the armed services involved in armed conflicts and sailors at sea. These include New York, Maryland, Alabama, Connecticut, Indiana, Iowa, Kansas, Massachusetts, Minnesota, Missouri, New Hampshire, New Mexico, Oregon, Rhode Island, South Carolina, Vermont, Washington, and Wisconsin. In these states, the validity of a holographic will usually expires at a certain time after it is drafted.

To be valid, a holographic will must meet certain requirements. These include proving that the testator created the will and had the mental capacity to do so. The testator must also express their wish to direct the distribution of their estate to beneficiaries. In some states, the entire will must be in the testator's handwriting, while others only require that material portions of it are handwritten.

Witness requirements

• Number of Witnesses: Most jurisdictions require two witnesses to be present when the testator signs the will. However, some states or provinces require three witnesses. It is important to check the specific requirements of your location.
• Age of Witnesses: Witnesses must be at least 18 years old or the age of legal adulthood in their respective jurisdiction.
• Competency of Witnesses: Witnesses should be of sound mind and competent to witness the signing of the will. They must have the capacity to understand the nature and significance of the document being signed.
• Disinterested Parties: Witnesses should be "disinterested," meaning they should not be beneficiaries of the will and should not have any financial or personal stake in the testator's choices. They should not be eligible to inherit anything from the estate.
• Presence of Witnesses: Witnesses must be present when the testator signs the will and vice versa. They must have a clear view of the testator and the act of signing. Remote witnessing via video conferencing may be allowed in certain places, such as England and Wales.
• Signature Requirements: Both the testator and the witnesses must sign the same document. Witnesses should sign in the presence of the testator, but they do not need to sign at the same time. The testator's signature can be replaced by a mark or another person signing on their behalf if they are unable to sign.
• Affidavit and Notarization: While notarization is not always mandatory, it is recommended to include a "self-proving affidavit." This involves appearing before a notary public with the witnesses to sign a sworn statement, which can facilitate the probate process and prove the will's validity.

Executor duties

The laws surrounding wills vary slightly between states, but there are some general rules that apply across the US. For a will to be valid, the testator (the person writing the will) must be of sound mind and sign the document. Most states also require the signatures of two witnesses who are at least 18 years old.

Executors are individuals appointed to administer the last will of a deceased person and carry out the instructions to manage the affairs. Here is a detailed list of executor duties:

• Understand the role and responsibilities of an executor. An executor is responsible for overseeing the process of wrapping up the decedent’s estate and distributing the remaining assets according to the will.
• Interview the will-maker if possible. Ask them where the will is kept, and request a list of financial assets with important details like account numbers and passwords.
• Obtain and review the latest will and any trust documents. Communicate an action plan to the beneficiaries and keep the lines of communication open.
• Hire a relevant professional team to support you. This could include an estate attorney to help with legal issues, and an accountant to manage tax filings.
• Plan and manage the funeral. Although the details of a funeral are not the responsibility of an executor, they are often consulted during the planning process.
• Create a detailed record-keeping system. Keep track of the amount of time spent working on the estate, financial concerns, and any expenses incurred.
• File the will with the probate court and obtain the death certificate.
• Notify necessary organisations and individuals of the death. This can include creditors, business ventures, and benefit providers.
• Find, value, and protect assets. Document all assets with the help of professionals, and communicate this process to the beneficiaries.
• Manage the estate, eliminating unnecessary costs. This includes tasks such as creating a bank account in the estate’s name, paying bills, and maintaining any property.
• Determine and pay debts, including taxes.
• Create a plan for the distribution or sale of personal property.
• Sell any real estate.
• Distribute the estate according to the will and close the estate.
• Plan your own estate.

Beneficiary identification

A beneficiary is anyone named in your will who will benefit from your estate. This benefit could be in the form of money or anything else you pass down. Beneficiaries are important as they give purpose and guidance for what you're leaving behind.

There are two types of beneficiaries: primary and contingent. A primary beneficiary is the first person or organisation to receive death benefits from an asset. A contingent beneficiary is the "second in line" and will receive benefits if the primary beneficiary dies before the will owner.

When choosing a beneficiary, it's important to consider whether anyone depends on you financially and whether you have children. However, there are no hard and fast rules for naming beneficiaries—it's completely up to you. Charities and organisations can also be beneficiaries.

Beneficiaries are typically identified in several places, including life insurance policies, last will and testament, retirement plans, social security disability, and savings and checking accounts.

As a beneficiary, you have certain rights. You are entitled to be informed in a timely manner about the basics of the estate, including accounting details. You should also be informed about dates for distributions and explanations for any delays. Beneficiaries should receive a copy of the will and be kept up to date on the administration of the estate.

If a minor is a beneficiary, a trusted adult will usually be named to oversee their inheritance. A Living Trust can be set up to allow provisions for how and when a minor beneficiary should receive assets.

It's important to note that there are no set rules for when a beneficiary should be notified of their interest in a will. However, it is considered good practice for beneficiaries to be notified early on in the estate administration process.

If you are a beneficiary and are experiencing delays or a lack of communication from the executor, it is recommended to try to resolve the issue through open communication before taking legal action.

Legal requirements

The legal requirements for a will vary slightly depending on the jurisdiction, but there are several key conditions that must generally be met for a will to be considered valid.

Firstly, the testator (the person writing the will) must be of sound mind and have the capacity to execute the document. This typically means that the testator must be an adult (over the age of 18) and be conscious and aware of their actions.

Secondly, the will must be in writing and signed by the testator. Deathbed signatures are valid, provided the testator has the capacity to sign the document. In addition to the testator's signature, most jurisdictions require the signatures of two or three witnesses who are at least 18 years old and who witness the testator signing the will. The witnesses must not be beneficiaries of the will or related to the beneficiaries by blood.

While a will does not need to be notarized to be valid, doing so can be helpful during probate, as it can provide proof of the will's validity. This can be done by executing a self-proving affidavit, where the testator and witnesses appear before a notary public to sign a sworn statement.

It is important to note that holographic wills, which are handwritten and unwitnessed, are only recognized in some jurisdictions and should not be the first resort.

To ensure that a will is valid and complies with the legal requirements of the relevant jurisdiction, it is advisable to seek the help of an experienced attorney or use a reputable online will-making service.

Frequently asked questions