The 9 Most Commonly Asked Questions About Last Wills And Testaments

Written by Christi Hayes and Fact Checked by The Law Dictionary Staff  

Estate planning and the role of last wills and testaments is a popular topic of conversation among members of the baby-boom generation. You might think you know a lot about last wills and testaments, but the answers to the nine most commonly asked questions people have about them might surprise you.

1. What are last wills and testaments?

Last wills and testaments are documents that state laws recognize as legally enforceable to convey your real and personal property upon your death in whatever manner you direct. Wills offer you great flexibility for accomplishing your wishes.

For example, if you have minor children or heirs who might be likely to squander an inheritance, you can create a trust in your will into which the inheritance is placed. Instead of the heir having control over the assets, the trustee you designate takes charge over the trust assets and administers them according to your instructions.

2. What are the legal requirements for a will, and do I need a new one if I move?

Because they are governed by the state law, the rules pertaining to who can make a will and other the what constitutes a legal last will and testament vary slightly from one state to another. As a general rule, you must be at least 18 years of age to make a will, and the will must be in writing and signed in the presence of witnesses. A will that satisfies the legal requirements of the state in which it was signed is enforceable in other states.

3. What is meant by "testamentary capacity?"

Most laws pertaining to the validity of last wills and testaments require the testator or person making the will possess testamentary capacity. Testamentary capacity means more than simply being of sound mind. The person making a will must understand the following in order to possess testamentary capacity:

  • The purpose of a will
  • The fact that the document being signed is a will
  • The fact that the will distributes the maker's property and assets

Part of testamentary capacity is the intent of the maker of the will to dispose of assets in a specific manner after his or her death. For instance, a person who signs a document believing it to be a rough draft of a will would probably not be found to possess the appropriate intent to dispose of the assets as written.

4. What if I change my mind, how easy is it to change my will?

Revoking your will is as easy as tearing up the original and any copies, but a better way of revoking your will is to make a new one. Most attorneys insert language into a will stating that it revokes any prior wills you might have made. Doing a new will instead of simply destroying your old one is the preferred method of revocation because it does not leave you without a will.

If you want to make changes or additions to your will without revoking it, you can do this with a codicil. A codicil is a legal document that amends or alters the provisions of a will. Codicils must meet the same formalities that the law requires for the preparation and execution last wills and testaments.

5. What is an executor?

An executor is the person you designate in your will to administer your estate. After your death, your designated executor is appointed by the court in your state that handles estates. Once appointed, he or she has the legal authority to carry out your wishes as stated in your will.

6. Do all assets pass to heirs through last wills and testaments?

Some types of property do not pass to the individuals you designate in a will. For example, jointly owned property, such as the home you own with your spouse, passes to the surviving owner under state law through "rights of survivorship." If, however, the surviving joint tenant or joint owner does not change the deed to add another person to it as a co-owner, then the property would pass under the individual's last will and testament as part of that person's estate.

Another example of property that does not pass to heirs according to the terms of a last will and testament would be the proceeds of a life insurance policy. The life insurance policies represent an agreement or contract between the insured and the insurance company under which the company shall pay the face amount of the policy to the beneficiaries named in the police upon the death of the insured. The terms of the life insurance policy and not will of the decedent govern how the insurance proceeds are paid.

An exception to the rule about life insurance policies arises when a beneficiary dies before the death of the insured or is removed by the insured and not replaced by another beneficiary. When a policy does not have a beneficiary named in it, the life insurance proceeds are paid to the estate of the insured and distributed according to the provisions of a last will and testament.

7. How frequently should last wills and testaments be updated?

The good news is that last wills and testaments do not expire. The bad news is that people put their last wills and testaments away and forget about them, but events occurring in life can nullify the provisions of a will. It's a good idea to review the terms of your will from time to time to determine if events, such as the following, require that it be revised:

  • Death of the individuals named in your will to receive all or a portion of your estate
  • The birth of children or grandchildren subsequent to the preparation of your will
  • Divorce
  • Marriage
  • Acquiring or disposing of assets
  • Children who were minors when the will was prepared reaching the age of majority

 

It is a good idea to go over your will every four or five years regardless of events in your life to identify anything you might want to add or change.

8. How difficult is it to challenge last wills and testaments?

Challenges to the validity or to the provisions of last wills and testaments are frowned upon by the courts. Unlike other documents, such as contracts, which courts are called upon to review when disputes arise, the problem with last wills and testaments is that challenges arise after the death of the maker who was the only person capable of articulating his or her true wishes. For this reason, courts lean heavily in favor of upholding the validity and provisions of last wills and testaments.

Successful challenges to last wills and testaments are usually those based on the testamentary capacity or age of the deceased at the time the will was prepared and signed. These types of cases are easier to prove because they can be based upon a birth certificate or other official record establishing the fact the maker of the will was at least 18 years of age, or they can rely upon testimony of physicians who treated the deceased and can attest to the individual's testamentary capacity.

Other grounds for challenges to a will include fraud, forgery and undue influence. Proving any of these brings into question the validity of the document. As previously noted, judges are skeptical of challenges to last wills and testaments, so the evidence produced must be clear, convincing and unequivocal.

9. What happens if a person dies without leaving a last will and testament?

A person who dies without a will is said to have died "intestate." Each state has intestacy laws that determine how the assets of a person dying without a will are to be distributed. Any assets that could have been passed to your heirs under a will are distributed according to the intestacy laws of your state.

As a general rule, intestacy laws favor your spouse and your children by giving them your entire estate. If you do not have a spouse or children, then your estate would be distributed to your parents or, if neither of them are alive, to your brothers and sisters. Depending upon the law in your state, intestacy laws provide for distribution of estates to other relatives if there is no surviving spouse, children, parents or siblings.

Intestacy laws do not offer the control over the distribution of your assets that you have with a last will and testament. For example, if you and your spouse have minor children, you might elect to leave everything to your spouse in the belief that he or she will provide the appropriate care for your children. Intestacy laws do not allow for such a distribution. Under intestacy, your estate would be distributed to both your spouse and to your minor children.

Questions about the laws of your state and last wills and testaments are best answered by an attorney. An attorney can also advise you about the provisions that should go into your will and give you guidance about how best to carry out your wishes.

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