Wills & Probate - Some Of The Arguments For Using An Attorney
Wills
A Will or Testament, together with any subsequent codicils, is the legal document by which a person names one or more persons (the "executor(s)") to manage the property (or "estate") he or she leaves, and explains how the estate should be distributed at death.
Anyone over the age of majority and of sound mind can draw up his or her own will without the aid of an attorney. However, there are disadvantages to doing this, since the deceased, by definition, is in no position to offer clarifications when the will is read.
Although the legal details may vary from one jurisdiction to another, there are some basic requirements which must be met:
The document being drawn up must be clearly identified as a will. This requirement is commonly called "publication" of the will, and is generally achieved by using the words "Last Will and Testament" as the title of the document.
The person on whose behalf the will is being drawn up (the "testator") must clearly identify himself or herself as the maker of the will. Similarly, the beneficiaries, or heirs, must be clearly identified.
The testator must show that he or she has the capacity to dispose of his or her property, and does so freely and willingly.
The testator must declare in the will that he or she revokes all previous wills and codicils. Most wills use stock language which expressly revokes any previous wills, since the courts will try to read any and all wills together. This will result in the most recent will superseding only those clauses in the previous wills and codicils where the two are clearly inconsistent with each other.
The testator must sign and date the will, usually in the presence of at least two witnesses who are not beneficiaries. It may be a good idea to have additional witnesses in case there should be any question as to possible conflicts of interest.
The testator's signature must be placed at the very end of the will as any clauses coming after the signature will be ignored. It is quite possible that the entire will may be invalidated if the courts decide that a clause or clauses after the signature are sufficiently important to alter the intent of the will.
The testator should generally give his executor the power to pay debts, taxes, and administrative expenses such as probate.
A person who dies leaving assets greater than the sum of his or her enforceable debts and funeral expenses, but without leaving a will is said to be "Intestate". Note that, while in some jurisdictions, revoking a will automatically reinstates the previous will, there are others which consider the testator to have died "intestate".
Intestacy laws vary from state to state. Most jurisdictions apply rules of intestate succession to determine next of kin who become legal heirs to the estate. If no identifiable heirs are discovered, the property may go by default to the state.
Probate
The purpose of probate is to determine the validity of the will or wills that the testator may have created, and to appoint an executor. In most cases, during probate, at least one witness is called upon to testify or sign a "proof of witness" affidavit.
If the will is ruled invalid in probate, then inheritance will occur under the laws of intestacy as if a will were never drafted. However, if a person dies intestate in a jurisdiction which recognizes a married couple's property as community property or as tenancy by the entireties, his or her estate will go to a surviving spouse without probate.
Often there is a time limit, usually 30 days, within which an original will must be admitted to probate; copies are not acceptable.
Conclusion
Although the underlying principles of drawing up a will a pretty straightforward, it is obvious from even a very brief summary such as this that there a plenty of pitfalls to avoid. The most obvious of these include:
Risk of invalidation of a will by the court.
Risk of misinterpretation of a poorly worded will.
Risks associated with Intestacy.
Risks arising from drawing up a will in one jurisdiction, and dying as resident of another.
The passing of a loved one is, at best, a difficult time for his or her survivors. The least one can do to ease their burden is to minimize legal and financial problems by getting your will drawn up professionally and unequivocally.
(c) Copyright - John B. O'Donahue. All Rights Reserved Worldwide.
John O'Donahue invites you to request a copy of the BereavementGuide Check List by visiting BereavementGuide.com, a One-Stop Support site for the bereaved.
The professional team at BereavementGuide.com can provide all the resources you need to deal with the passing of a loved one in a convenient, One-Stop Support package covering everything from grief counseling to legal advice, liquidation of the estate and listing and sale of any real estate.
(c) Copyright - John B. O'Donahue. All Rights Reserved Worldwide.
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