Wills

This week, the theme will center around estate planning. Today, we will start with the will. A will is a legal declaration of a person's wishes regarding the disposal of his or her property or estate after death. What most do not realize with respect to wills is that you can draft your own will without the aid of a lawyer.

Let's examine the requirements of a legal will. First, as with any legal document, the person must be of the age of majority. This can vary from state to state, but in most states it means that the person must be at least 21 years old, some are 18. The person making out the will is called the testator. Here are the requirements:

• The testator must clearly identify himself as the maker of the will, and that a will is being made; this is commonly called "publication" of the will, and is typically satisfied by the words "last will and testament" on the face of the document.

• The testator must declare that he revokes all previously-made wills and codicils. (A codicil is an amendment or addendum to the will.) Otherwise, a subsequently-made will revokes earlier wills and codicils only to the extent that they are inconsistent. However, if a subsequent will is completely inconsistent with an earlier one, that earlier will be considered completely revoked by implication.

• 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). In some jurisdictions, for example Kentucky, the spouse of a beneficiary is also considered an interested witness. In the USA, Pennsylvania is the only state which does not require the signing of the will be witnessed.

• The testator's signature must be placed at the end of the will. If this is not observed, any text following the signature will be ignored, or the entire will may be invalidated if what comes after the signature is so material that ignoring it would defeat the testator's intentions.

Although there is no legal requirement that a will be drawn up by a lawyer, there are pitfalls the home-made wills are susceptible to. The biggest problem is that the language must be perfectly clear as to the intent of the person, because the deceased is not there to clarify the intent afterwards. A common error, for example, in the execution of home-made wills in England is to use a beneficiary (typically a spouse or other close family members) as a witness -- although this has the effect in law of disinheriting the witness regardless of the provisions of the will.

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. In community property (joint ownership of all property of married persons except for gifts and inheritances) jurisdictions, a will cannot be used to disinherit a surviving spouse, who is entitled to at least a portion of the testator's estate. In England, a will may disinherit a spouse, but close relations excluded from a will (including but not limited to spouses) may apply to the court for provision to be made for them at the court's discretion.

It is a good idea that the testator give his executor the power to pay debts, taxes, and administration expenses, including probate costs. Probate is the legal process of settling the estate of a deceased person, specifically resolving all claims and distributing the decedent's property.

Probate generally lasts several months, occasionally over a year before all the property can be distributed, and incur substantial court and attorney costs as well as estate taxes. One of the many ways to avoid probate is to execute a living trust. This is a separate entity to which a person transfers ownership of his real property (house, possessions, etc.,) from himself to a trust which he controls and can revise at any time (except in the case of an irrevocable trust.)

Tomorrow, there will be more detail describing trusts and their uses.

In the case of a will, it is necessary to prove the death of the one who made it, because a will is in force only when somebody has died; it never takes effect while the one who made it is living. This is why even the first covenant was not put into effect without blood. Hebrews 9:16-18 (NIV)

If there are comments or questions, please feel free to contact me at the address below.
Email: DeltaInspire@panama-vo.com