Wills
A will, formally known as a "last will and testament," is a legal document through which an individual, referred to as the testator, outlines their wishes for asset distribution after their death. It allows the testator to specify guardianship for dependents, appoint an executor to manage the distribution of their estate, and make bequests to individuals or charitable organizations. When someone dies without a will, their assets are distributed according to state laws through a legal process known as probate, which may not align with their personal wishes.
In the United States, only adults aged eighteen and older can create a will, and the document must be executed in the presence of disinterested witnesses to be legally binding. Some key components of a will include naming an executor and detailing specific gifts, known as bequests, to beneficiaries. Importantly, individuals cannot disinherit their spouses unless legal agreements are in place, and certain assets, like those with designated beneficiaries, are not included in the estate. To reduce disputes, it is often advised to communicate openly with family members about the provisions of the will.
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Wills
A will is a legal document in which a person describes how to distribute any of his or her remaining assets after the person dies. A last will can be used to specify guardianship for property or dependents, to name a person to manage the distribution of assets, and to make specific bequests to individuals and charities. When a person dies without a will, remaining assets will be distributed by the probate courts according to laws regarding inheritance. Inherited assets are sometimes subject to inheritance taxes. Though laws regarding wills differ between states, most jurisdictions recognize any will made by an adult individual of sound mental health and witnessed by at least one disinterested party.
Background
A will, sometimes known as a "will and testament," is a legal document created by an individual, known as the "testator," in which the person describes their wishes regarding the allocation of any assets that remain after their death. The total of a person’s physical and financial assets, minus debt, is known as an "estate." After death, all assets that are not automatically transferred to another party become part of the estate, and a will allows an individual to determine how the assets of the estate are distributed after their death. Individual gifts distributed through a will are called "bequests," and an individual or organization receiving a gift is known as a "beneficiary."
When an individual dies without a will, any assets that pass to the estate after payment of the individual’s debts are called "intestate," or "without testament." In the United States, the distribution of intestate assets is conducted through a legal process known as "probate." A probate court will appoint an administrator to handle the distribution of the deceased’s assets according to laws regarding inheritance.
If the deceased was married at the time of his or her death, assets will usually become the property of the surviving spouse. In cases where there is no surviving spouse, property is generally distributed among the individual’s blood descendants or other blood relatives in cases where the deceased has no children. Probate law only considers familial relationships and will not allow for the distribution of assets to organizations, charities, stepchildren, godchildren, or friends. Individuals wishing to distribute assets to nonrelated individuals or organizations must specify this intention through their will or some other legal means of transferring property.
Overview
Laws regarding wills differ among states, but there are general guidelines that apply in most jurisdictions. Only adult individuals eighteen years and older are legally allowed to prepare a will. The testator should begin with a written declaration of the document’s purpose and a statement that the document should be considered his or her legitimate will. The testator might also state that he or she is of sound mind at the time the document was created.
In most cases, the testator will name an individual known as the executor who is responsible for administering the reading of the will and making sure that the wishes of the testator are carried out. The executor does not need to be a blood relative. Some individuals choose to name a spouse or adult child as executor. Others name their personal attorney or a law firm to serve as executor.
Individuals with minor children or dependents can use their will to name an individual to serve as legal guardian in the case that both parents of the children are deceased. Naming an individual as guardian does not nullify the parental rights of a surviving parent. In addition, minor children cannot own property, so the testator can use a will to appoint a temporary guardian of property until the intended heir reaches adult age, which is eighteen in the United States.
A last will may also contain a list of any specific bequests to individuals, charities, or organizations. Bequests can be general, such as "any property found in my house," or specific, such as "my laptop computer should be given to. . . ." Charities, organizations, and unrelated individuals cannot claim assets from an estate unless they are named as a beneficiary in a will or other legal document. In the United States, the testator may not disinherit his or her spouse in their will. Unless the couple is divorced or there is a legal prenuptial or postnuptial agreement, a surviving spouse is automatically entitled to a portion of a deceased spouse’s assets.
Certain types of property are not included in a person’s estate and must be independently bequeathed. For instance, individual retirement accounts such as IRAs typically have a named beneficiary who automatically inherits the contents of the account. In most cases, beneficiary designations linked to specific accounts supersede a person’s will. Likewise, a person can designate individuals as "co-owners" of their financial accounts before death, and the contents of these accounts will then become the property of the surviving account holder regardless of the contents of the deceased’s will.
To ensure that the will is a legally binding document, the testator should have one or more disinterested parties present when the will is signed. A disinterested party is legally understood as someone who is not named as a beneficiary. To execute a will, which is to make the will active and binding, the testator signs and dates the will in the presence of witnesses after which the witnesses also sign and date the document. While most states do not require wills to be notarized, doing so can help verify the document’s validity in the case of a legal challenge.
Contesting a will is a legal process in which the courts determine if a person’s will is legal and valid. In general, courts are reluctant to declare a will invalid and will only do so if the individual contesting the will can provide evidence to suggest that the will is fraudulent or that the testator was not of sound mind when the will was created and/or executed. Most attempts to contest the provisions of a will fail when they reach the courts. Only an interested party, which is legally defined as an individual who would inherit through descent or is in some other way connected to the individual and so expected to be a beneficiary, can contest the validity of a will. In some cases, a person might be accidentally left out of a will, such as a child born after the will was created. Some states have laws that automatically distribute assets to all descendants to prevent accidental disinheritance unless the individual is explicitly denied an inheritance in the will.
The expense of defending a will is taken from the assets of the deceased’s estate. Individuals concerned about legal contests can seek the help of a probate specialist to prepare their will. Having a will notarized, signed by more than one legitimate witness, and adding testament of one’s mental state can prevent most legal challenges. In general, and when possible, the best way to ensure one’s wishes after death is to talk with and agree to the provisions of the will with one’s family and other possible beneficiaries.
Bibliography
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