Frequently Asked Questions FAQ

What is a will? Is it the same as a last will and testament?

A Will is a written document, generally prepared with the help of an attorney, that provides instructions for the disposition of a decedent’s (dead person’s) property. The term “Last Will and Testament” is simply a more detailed name for a Will.

 Why should I have a will?

A last will and testament will enable you to provide for such things as:

  • Who will receive the property you own at your death;
  • Who will handle the distribution of your assets;
  • Who will be the guardian of your minor children; and
  • How to leave your property in order to avoid certain estate taxes.

Does a will cover all my property?

No. For example, if you own pension plan assets, or 401(k) plan assets, or life insurance, or annuities, or property held through a “Trust”, such property and benefits would typically pass to the specific beneficiaries you have named with the manager of the pension plan, the company sponsoring the 401(k), each life insurance company, each annuity company, and in the Trust. Of course if the beneficiary of such assets is simply named as “my estate” then the Will would control who gets the property and benefits. Property held in joint tenants with right of survivorship also passes outside of the will.

What can happen if I do not have a will?

If you die without a Will, you have died intestate. Your property still must go through a probate process in order to have the legal title to the property transferred to your heirs-at-law. Your heirs-at-law are defined by applicable state statutes. The law of the state where you live controls the distribution of your personal property. The rules for determining who gets property distributed from an in testate estate have many variations.

Some states pass a decedent’s estate to his or her spouse and blood relatives (those descended from common ancestors). The only exception to this general statement is that legally adopted persons are also treated as blood relatives. One share of the decedents estate is allocated for each child of the decedent and one share is allotted to the spouse of the decedent, if any. For example, the estate of a man who dies with a wife and three children would be split between the wife and children in equal fourths. This allocation is made per stirpes, meaning that the share of any deceased child is split between that child’s children (the decedent’s grandchildren), and so on at subsequent generational levels. If the decedent leaves no spouse or children, his estate is split among descendants of his ancestors, beginning with father, mother, siblings, and children of siblings who predecease the decedent. If the decedent leaves no children and a spouse, his or her spouse will inherit the entire estate.

When should a will be prepared and signed?

A Will needs to be prepared and properly executed (signed by the testator or testatrix and witnesses) while you still have legal capacity. A testatrix is a legal term referring to a female who makes a will. A testator traditionally has referred to a male will maker, while a testatrix is the feminine form of the noun. However, distinguishing between genders is becoming less common.

I want to update my will. How do I go about it?

There are two basic choices, and professional assistance is in order for both:

(1) You can prepare and properly execute a new Will that revokes the earlier Will, or

(2) You can prepare and properly execute a Codicil to the Will. A Codicil is a separate document that adds to and/or replaces one or more provisions in an existing Will. It is like an amendment to your earlier Will.

While Codicils were often used in the past, now lawyers use word processing programs which are able to quickly integrate any changes you want to make — even minor revisions — into a new Will that is being brought up to date. The fee for such revisions is typically very modest, and the lawyer can suggest other possible revisions to take account of new statutes, tax regulations and changes in circumstances that you may have overlooked.

Are oral “death-bed wills” valid?

A nuncupative will is an oral will that must have two witnesses and can only deal with the distribution of personal property. Real property cannot be transferred through a nuncupative will. A nuncupative will is considered a “deathbed” will, meaning that it is a safety valve for people struck with a terminal illness and a written will is not able to be drafted. The nuncupative device is usually useable only in situations of extreme emergency. Many state statutes limit the amount of property that can pass under a nuncupative will, from $200 to several thousand dollars.

What is a holographic last will and testament?

A holographic will is one that is entirely written, dated, and signed in the handwriting of the testator (person making the will), rather than typewritten or printed. In some states, holographic wills are not required to be signed by witnesses in order to be valid to pass property. Courts have been lenient in trying to construe some holographic wills when questions arise, but judges will not rewrite a holographic will to make it valid. A holographic will is probably the most risky do-it-yourself estate plan because of the lack of guidelines involved.

How long is a will valid?

A validly prepared and properly executed Will is valid until you intentionally revoke it or prepare and execute a new Will that revokes the previous Will. In addition, a change in marital status, such as a divorce, may impact provisions in a Will and/or beneficiary designations.

What are self-probating wills?

A so-called “self-probating Will” typically has affidavits of the witnesses who saw the decedent sign the Will. The affidavits are attached to the Will. In those affidavits, the witnesses state: that they saw the deceased execute or sign the Will, the deceased asked them to be witnesses to the Will, he or she appeared mentally competent at the time, and acted voluntarily (not out of fear, intimidation, or coercion). Without such affidavits, it would typically have been necessary for the Executor (or a lawyer for the Executor) to round up the original witnesses and have them come into court (if possible) to state the circumstances surrounding the execution of the Will, or at least give an affidavit.

Suppose a person is mentally competent at the time of making a will but subsequently becomes incompetent. Is the will still good?

Yes. The fact that the person making the Will has weakened mentality sometime after the Will is made has no bearing. It only becomes important should the person having an unstable mind want to change the Will at a later date. However, capacity may be generally defined as the ability to understand that a will is being made and to understand its general nature.  The fact that a person does not fully understand the full meaning and all ramifications of a will does not mean that the person lacks capacity.

What effect does moving to a different state have on a will?

A Will that is properly made and properly executed in your former state of residence, that would be valid under the laws of your former state, will almost invariably be regarded as valid by the laws of your new state. However, as the laws of all states differ, if you move it makes sense to have your Will reviewed by a lawyer in your new state.

For example, sometimes the new state has different processes to “prove” the Will. The new state may permit probate matters to be handled on a less formal and less expensive basis, simply by adding to the Will reference to certain specific statutory provisions in the new state’s laws.

Occasionally complications arise because different states have different classifications of property. For example, if your Will was executed in a state that does not have a community property system and you move to one of the 9 community property states, you may wish to get in touch with an attorney to determine whether your Will should be redrafted to achieve your intended result.

If I have a living will, would I also need a real “will”?

Yes. A “Living Will” has absolutely nothing to do with managing or controlling your property either during your lifetime or at your death. It deals only with health care options.

Can I disinherit my spouse?

Not completely, unless you and your spouse have waived the right to be included in the other’s estate in a prenuptial or postnuptial agreement. Each state has laws that shield a surviving spouse from being completely cut off.

In most states, the surviving spouse can choose between the property left in the deceased spouse’s Will or a statutory share set by state law (usually one-third or one-half of the estate). Whether it is advantageous to elect the state’s share – generous in some states, minor in others – depends on the rules for calculating the elective share, which rules and exceptions have a remarkable number of variations between the states.

In a community property state, the surviving spouse already owns half of the community property at the death of the other spouse.

Can a parent disinherit a child?

Generally Yes. To do so, it is advisable to specifically say in the Will that the omission is intentional. Often Wills have language along these lines: “I have previously taken care of my daughter Susan during my lifetime, and have chosen to leave nothing to her in this Will. Similarly, I am leaving nothing to my son John, for reasons known to both of us.”

What reasons are there to change or update a will?

Typical reasons for changing or updating a Will are:

(1) You marry or divorce;

(2) Birth or adoption of child;

(3) Death of a family member or beneficiary;

(4) Changes in the Federal Estate Tax laws or State Tax laws;

(5) Substantial change in the value of your estate;

(6) Change in the nature of your property holdings;

(7) A Guardian or Executor or Trustee moves away, dies, or is no longer willing or able to serve;

(8) Your children are no longer minors, or are old enough to handle financial matters on their own;

(9) You move to another state; or

(10) You wish to eliminate gifts to certain beneficiaries;

How can I revoke a will?

If you are mentally competent, you can revoke a prior Will by destroying it, obliterating it, burning it, or tearing it up. Of course, unless the act of revocation is properly witnessed and recorded, someone may later contend the Will was simply “lost” and not revoked, or that you lacked mental competence at the time you “attempted” to revoke your Will. This could give rise to a “Will Contest”. It is preferable to execute a new will specifically revoking all previous wills.

When should a last will and testament nominate a guardian and what role does a guardian play with respect to minor children?

A Guardian is the person who is responsible for the health, education and welfare of minor children. Technically there is a Guardian of the Person and a Guardian of the Estate of minor children (usually the same person serves in both roles). The Guardian of the Person has responsibility for decisions regarding the health, education and welfare of the minor child, and the guardian of the Estate is responsible for the child’s property and for handling all financial matters for the minor child. In the event of the deaths of both parents, it is important to have a Guardian for minor children named, to ensure that the children will be well cared for by someone the parents trust.

What role does the personal representative play under a will?

Responsibilities of the executor or administrator may include:

  • gathering up and protecting the assets of the estate,
  • obtaining information in regard to all beneficiaries named in the will and any other potential heirs,
  • collecting and arranging for payment of debts of the estate,
  • collecting any payments that are due to the estate such as insurance dividends, salaries, any other income;
  • insuring that any money due under insurance policies is paid to the estate.
  • opening a bank account to handle any required financial transactions on behalf of the estate;
  • getting in touch with the employer or former employer of the decedent to verify whether the estate is owed any amounts for unpaid salary, benefits or insurance policies;
  • providing any creditors with notice to make their claim from the estate;
  • verifying any claims made against the estate of the decedent;
  • approving or disapproving creditor’s claims,
  • taking responsibility for any legal action in which the decedent was involved at the time of death;
  • paying all valid debts of the decedent’s estate, such as funeral bills, outstanding taxes, liabilities to other creditors, and estate administration costs;
  • making sure estate taxes are calculated, forms filed and tax payments made, and in all ways assisting the attorney for the estate.
  • dealing with any valuations required on any of the assets left by the decedent;
  • notifying relevant authorities and organizations of the person’s death (e.g. landlords, utility companies, social security etc.).
  • protecting the assets and property of the decedent until they are disbursed to the beneficiaries;
  • determining what each beneficiary gets from the decedent’s estate; and
  • ensuring that the remainder of the estate is distributed in accordance with the wishes of the decedent.

What does a will usually contain?

Typical provisions of a Last Will and Testament include:

  • name of the testator (your name);
  • name of the testator’s spouse and date of marriage, if any;
  • name of all of the testator’s children (and how foster and stepchildren are to be treated), if any;
  • revocation of all prior Wills;
  • special gifts, if any;
  • distribution instructions for the remainder of the estate after payment of just debts, taxes and expenses incurred in administration of the estate
  • nomination of the Personal Representative and alternates
  • powers that are to be given the Personal Representative (often defined as those provided under state statute), and
  • waiver of the surety bond requirement.

Does a will change named beneficiaries for life insurance policies, pensions, and similar accounts?

No. The person or persons you have properly designated as the beneficiary of your life insurance policy, a joint bank account, an IRA, or 401(k) or other retirement plan will receive the proceeds regardless of what your Will says.

The bank holding my deceased mother’s certificate of deposit and will not distribute the funds to her estate without her will being probated. Can the bank require my family to go through that process?

The probate process is what is used to “prove” the document is in fact her last Will, there are no challenges to it, and any claims against the estate are adjudicated under court supervision.

If the account was solely in her name, it now is the property of her estate, and only the executor named in a Will after the appointment is confirmed by the probate court, or a personal representative of her estate designated by the probate court, has rights to the money. Further if the bank paid a beneficiary and any creditor did not get paid, or any Federal estate taxes were not paid, the bank could be held liable to the creditors/tax authorities if it did not make payments pursuant to a probate court’s authorization.

In some cases it is true an institution may waive the requirement that it be probated if the beneficiary is the principal heir at law, all other possible heirs at law have signed waivers and authorizations to pay the money to the beneficiary, and have agreed to indemnify the bank should any claims be made. But that’s the exception, rather than the rule for nationally operating institutions.

What should I keep in mind when I select the executor of my will?

Choosing as an executor is a crucial decision since his or her job can be a thankless one. The executor usually gets the blame if things do not go the way family members expect. Since the executor is bound to carry out the terms of your will and obey the laws of the state, pick someone who is organized and trustworthy. If your bank has a trust department, you might discuss this with a trust officer. Many banks serve as executors and trustees and their fees are generally reasonable. If you decide to name a person, consider an executor that has a personal interest in your family, is familiar with your affairs (but does not have a conflict of interest), has people skills, and the competence and maturity to do the job well.

I am the heir to my father’s estate, since he allegedly died without a will. However, a family member has a photocopy of a will that they want to submit to probate. This “will” leaves nothing to me. The original will cannot be located. Should I consent to admission of my father’s photocopy? If I don’t sign the form, can it be submitted anyway?

This is one of those situations where you need to get a lawyer to advise you as soon as possible unless you really prefer not to receive any inheritance from your father’s estate. The person named as beneficiary in the photocopy of the old will may want you to consent to admitting the copy to probate, because there is a very good chance that if you were to appear and object to the photocopy being accepted it never would be admitted to probate.

Where should I keep my will?

Once your will is written, store it in a safe place that is accessible to others after your death. Consider keeping it in a fire proof box that you can purchase at any office supply store.  You might not want to keep it in a safe deposit box because many states require that your safe deposit box be sealed upon your death.  Make sure a close friend or relative knows where to find your will.

 

View More Questions and Answers related to Wills at Answers.USlegal.com

 

Wills and Estates Legal Questions and Answers – View All

 


Inside Frequently Asked Questions FAQ