Will, Trust, Estate Planning & Probate Law
Will (law), in law, disposition by an individual of his or her property, intended to take effect after death. A disposition of real property by will is termed a devise; a disposition of personal property by will is termed a bequest. The person making a will, called the testator, must have testamentary capacity, that is, must be of full age and sound mind and must act without undue influence by others.
By statute in the U.S. and in England, a will is required to be in writing, whether it disposes of real or personal property; a soldier or sailor in combat, however, may make a will orally. In a number of jurisdictions in the U.S., an oral will is also valid when made by a testator during sickness that terminates in death, but it must be made at a point when, because of the apparent imminence of death, neither time nor opportunity exists to make a written will. The law usually provides that the contents of an oral will must be reduced to writing within six days after it was declared in the presence of the statutory number of witnesses, usually three. Such oral wills are termed nuncupative wills and may dispose only of personal property. A written will that is entirely in the handwriting of the testator is termed a holographic will and may dispose of real or personal property, or both. The statutes of some states in the U.S. recognize such wills as valid without formal execution or attestation, if wholly written, dated, and signed by the testator's own hand. A holographic will is valid only if it complies literally with the controlling statute.
A written will must be signed at the end; a testator unable to write may make an X, and such a mark is considered a valid signature. In the U.S. generally, two, and in some states three, persons must witness the will, that is, they must sign the will as witnesses to the signature of the testator. In most states the signing must be done in the presence of witnesses, and the testator must state that the document being signed is his or her will. The witnesses need not be acquainted with one another and may sign at the same time or at separate times, depending on the statutory requirements of the state in which the will is executed; thus, the signature may, in most states, be written in the presence of one witness and acknowledged later by other witnesses.
All witnesses to a will must be "competent." A witness is considered incompetent if he or she is a beneficiary under the instrument; if one of the necessary witnesses is a beneficiary, the will is void. To remedy such situations it has generally, although not universally, been provided by statute that a bequest to a subscribing witness shall be void and that the will shall otherwise be valid.
An attestation clause, or a clause certifying the proper execution of the will, must usually be added after the testator's signature. The following is a simple form of such a clause:
Signed, sealed, published, and declared by Jane Doe, the testator, as her last will and testament in the presence of us, who at her request and in her presence and in the presence of each other have hereunto subscribed our names as witnesses.
A.B. residing at 1000 X Street, Blank City
C.D. residing at 1100 X Street, Blank City
As a rule, no particular form is prescribed by the various statutes for the preparation of a will so long as the testator's intent is in writing.
A will is revocable until the testator's death. The only exception to this occurs when two parties simultaneously make mutually irrevocable wills in which they name one another as their respective beneficiaries and expressly give up the right to revoke their wills. A testator may revoke his or her will by destroying it, either by burning or tearing it up, or by obliterating the signature. Any part or the whole of the will may be revoked by a codicil, or an amendment to the will, executed with the same statutory formalities as the will itself.
A valid later will revokes a prior will. Disposition of property by the testator before death, as by gift or sale, is not a revocation of the will, although its effect may be similar to one.
Marriage of the testator subsequent to the date of execution of the will revokes the will as to the surviving spouse or children, who are entitled to the same rights in the estate as if the testator had died intestate, that is, without leaving a will.
No disposition of an estate is made after the testator's death until the will is probated. The probate of a will is a court proceeding up on notice to the heirs and next of kin. Questions frequently arise about the construction of the terms of a will. The most important rule of construction is that the intention of the testator as it appears from the will shall be carried out whenever legally possible; when the will is ambiguous, the circumstances surrounding its execution may be examined in order to ascertain the testator's intention.
The statutes of each state must be consulted as to restrictions on a testator's disposition of his or her property by will. In many jurisdictions a will may not exclude a surviving spouse. The degree of participation of the spouse in the estate varies from state to state. Many jurisdictions, however, permit a person to exclude children from participation in the estate.
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