What is a Will?
In the law, a will or testament is a document by which a
person (the testator) regulates the rights of others over
his property or family after death. For the devolution of
property not disposed of by will, see inheritance and
intestacy. In the strictest sense, "will" is a general term,
while "testament" applies only to dispositions of
personalty (this distinction is seldom observed). A will is
also used as the instrument in a trust.
The conception of freedom of disposition by will, familiar
as it is in modern England and the United States, both
generally considered common law systems, is by no means
universal. In fact, complete freedom is the exception
rather than the rule. Civil law systems often put some
restrictions on the possibilities of disposal.
Advocates for gays and lesbians Have pointed to the
inheritance rights of spouses as desirable for same-sex
couples as well, through same-sex marriage or civil
unions. Historically, courts Have been more willing to
strike down wills leaving property to a same-sex partner
for reasons such as incapacity or undue influence.
Legal requirements for creation of a Will.
Any person over the age of 18 can draft his own will
without the aid of an attorney. A will that is properly
drafted, executed, and witnessed cannot lead to it being
contested. In order for it to be valid, however, every will
must contain the following:
* The testator must clearly identify himself as the maker of
the will.
* The testator must declare that he revokes all
previously-made wills and codicils.
* The testator must demonstrate that he has the capacity to
dispose of his property, and does so freely and willingly.
* The testator must sign and date the will, usually in the
presence of at least two disinterested witnesses (persons
who are not beneficiaries).
Some states recognize a holographic will, made out
entirely in the testator's own hand. A minority of states
even recognize the validity of nuncupative (oral) wills.
A will may not include a requirement that an heir commit an
illegal, immoral, or other act against public policy as a
condition of receipt. It also cannot be used to disinherit a
spouse. Under state laws, a surviving spouse is entitled to
at least a portion of the testator's estate.
It is not only a good idea, but essential that the testator
give his executor the power to pay debts, taxes, and
administration expenses (probate, etc.). Warren Burger's
will did not contain this, which wound up costing his estate
thousands.
Revocation of a Will.
Some jurisdictions hold that revocation of a will
automatically revives the most recent will; others hold that
revocation leaves the testator with no will, so that his heirs
will inherit by in testate succession. Some also allow partial
revocation if the testator crosses out a specific clause.
Others require that either the entire document be
revoked, or none of it may be. Some jurisdictions hold that
the execution of a new will revokes all previous wills,
irrespective of whether it does so expressly. Others hold
that a new will only over-rides the clearly inconsistent
provisions of an earlier will.
In the law, a will or testament is a document by which a
person (the testator) regulates the rights of others over
his property or family after death. For the devolution of
property not disposed of by will, see inheritance and
intestacy. In the strictest sense, "will" is a general term,
while "testament" applies only to dispositions of
personalty (this distinction is seldom observed). A will is
also used as the instrument in a trust.
The conception of freedom of disposition by will, familiar
as it is in modern England and the United States, both
generally considered common law systems, is by no means
universal. In fact, complete freedom is the exception
rather than the rule. Civil law systems often put some
restrictions on the possibilities of disposal.
Advocates for gays and lesbians Have pointed to the
inheritance rights of spouses as desirable for same-sex
couples as well, through same-sex marriage or civil
unions. Historically, courts Have been more willing to
strike down wills leaving property to a same-sex partner
for reasons such as incapacity or undue influence.
Legal requirements for creation of a Will.
Any person over the age of 18 can draft his own will
without the aid of an attorney. A will that is properly
drafted, executed, and witnessed cannot lead to it being
contested. In order for it to be valid, however, every will
must contain the following:
* The testator must clearly identify himself as the maker of
the will.
* The testator must declare that he revokes all
previously-made wills and codicils.
* The testator must demonstrate that he has the capacity to
dispose of his property, and does so freely and willingly.
* The testator must sign and date the will, usually in the
presence of at least two disinterested witnesses (persons
who are not beneficiaries).
Some states recognize a holographic will, made out
entirely in the testator's own hand. A minority of states
even recognize the validity of nuncupative (oral) wills.
A will may not include a requirement that an heir commit an
illegal, immoral, or other act against public policy as a
condition of receipt. It also cannot be used to disinherit a
spouse. Under state laws, a surviving spouse is entitled to
at least a portion of the testator's estate.
It is not only a good idea, but essential that the testator
give his executor the power to pay debts, taxes, and
administration expenses (probate, etc.). Warren Burger's
will did not contain this, which wound up costing his estate
thousands.
Revocation of a Will.
Some jurisdictions hold that revocation of a will
automatically revives the most recent will; others hold that
revocation leaves the testator with no will, so that his heirs
will inherit by in testate succession. Some also allow partial
revocation if the testator crosses out a specific clause.
Others require that either the entire document be
revoked, or none of it may be. Some jurisdictions hold that
the execution of a new will revokes all previous wills,
irrespective of whether it does so expressly. Others hold
that a new will only over-rides the clearly inconsistent
provisions of an earlier will.
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