Last Will & Testament Information

By David Carnes
Probate court

US Supreme Court image by dwight9592 from Fotolia.com

A will is an important legal document that determines the disposition of your property after you die. If you die without a will, your property will be distributed according to state statute. It may be tied up in probate court for a long period, and it may not be distributed according to your wishes. In order to write an effective will, you should understand some of the underlying legal principles.

Types of Wills

There are three major types of wills. The first type is the testamentary will, which is in written form and signed in the presence of witnesses. It is considered by far the most reliable type of will. The second is the holographic will, which is in written form but not signed in the presence of witnesses. Holographic wills are usually ignored by probate courts. The third type is the oral will, which is delivered orally in the presence of witnesses. Although oral wills are considered superior to holographic wills, they are still not reliably enforced by probate courts. A living will has nothing to do with the distribution of property after death, but rather instructs doctors when to discontinue the life support of a terminally ill person who is unable to communicate.

Scope

Although you can use a will to distribute most of your property, there are some items that a will does not cover. Community property will automatically revert to your spouse upon your death. Life insurance payouts, investment accounts that transfer on death, retirement funds, and assets that you co-own as a joint tenant cannot be distributed through a will.

Testamentary Capacity

In order to create a legally binding will, you must have "testamentary capacity." This means that you must be mentally sound enough to understand (i) that you are making a will, (ii) how much property you have, (iii) who your heirs are, and (iv) how the will operates to distribute your property. You must also be free from coercion, intimidation or deception to the extent that such would prevent you from making a free choice regarding the distribution of your property (this is known as "undue influence").

Writing a Will

Before writing a will you should make an inventory of all your property so that you will know what will be distributed. You should entitle the document "Last Will and Testament," identify yourself by full name and address, and state that you are of sound mind and free from undue influence. You should revoke all previous wills and codicils, name an executor to administer the distribution of your property, name a guardian for any minor children, clearly identify your beneficiaries, and clearly identify the property you wish to distribute to each beneficiary. If you gain more property later and wish to distribute it as well, you should create a "codicil" (an addendum to an existing will).

Executing a Will

In order to execute your will, you will have to sign it in front of witnesses. Although most states require the presence of two witnesses to execute a will, you should check the law of your state. Witnesses are required to confirm that you are the person who signed the will, and that you were mentally sound at the time you signed it.

Delivery

The final step in creating a legally binding will is to deliver it to your executor. It is best to hand your will to your executor personally, although this is not a legal requirement.

About the Author

David Carnes has been a full-time writer since 1998 and has published two full-length novels. He spends much of his time in various Asian countries and is fluent in Mandarin Chinese. He earned a Juris Doctorate from the University of Kentucky College of Law.

Cite this Article A tool to create a citation to reference this article Cite this Article