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What is a Will?

By:  Jeffrey H. Skatoff, Esq.

A will is a document that directs what happens to your property at your death.

What are the Requirements to Have a Valid Will?

The validity of a will is determined when it is executed, according to the laws of the state where you reside at the time of making the will.  In general, a will must be written on paper, signed by the testator, and witnessed and signed by two witnesses.  Additionally, a will can be notarized, which makes the will self proving.

Is a Holographic Will Valid?

In some states, a holographic will is valid.  A holographic will is a will that is handwritten by the testator and signed by the testator, without witnesses.  Even if the holographic will was valid in the state where it was made, if the testator dies in a different state, the laws of that state might not admit the holographic will to probate.

Does the Testator Need to Have Capacity When the Will is Executed?

Yes, every state requires that the person making the will have what is known as testamentary capacity.  Although the law in each state varies a little in terms of how capacity is defined, in general, the person making the will needs to understand the nature of their property and the effect of the will on their property.

Learn more about testamentary capacity:

Who Can Witness a Will?

An adult person with capacity can witness the execution of the will.  The laws of some states are that any person who witnesses a will cannot be a beneficiary of the will, but this is a minority viewpoint.  A person who witnesses a will, if also a beneficiary, could be accused of undue influence on the testator, so it is in general a bad idea to have a witness to a will also be a beneficiary of the will.

Learn more about rules for witnessing a will:

What is a Self Proving Will?

Most states will not allow a will to be admitted into probate if the will is not self proving.  A self proving will is a will that is validly notarized in the state where the will was created.  If a will is not self proving, additional proof may be required, such as an affidavit or testimony from one of the witnesses to the will, or perhaps the lawyer who oversaw the execution ceremony.

What are the Important Parts of a Will?

A will will typically have a section that makes specific bequests of property to named individuals.  For example, a will might bequeath a primary residence to a surviving spouse.  A will should also have a residuary clause, which leaves all of the property not specifically bequeathed to a person or group of persons.  A will should also name a personal representative, also known as an executor, who administers the probate estate.

A will that is missing any of these components may still be valid.  For example, many wills do not have specific bequests, instead leaving everything to one person or a group of people.  If a will is missing the appointment of a personal representative, such does not make the will invalid – state law will determine who can be the personal representative.  If a will is missing a residuary clause, the residuary will go under the laws of intestacy of the state where the person was living at death.

Can Minors Inherit Under a Will?

Yes, minors can inherit under a will, but the inheritance will go to their natural guardian for custody purposes or, depending on state law, a guardianship will be required.  For example, some states allow a natural guardian of a minor to establish a Uniform Transfer to Minors Act account to hold the inheritance for the minor until the minor reaches the age of majority.

Learn more about how minors inherit from an estate.

Can a Trust Be Established Inside of a Will?

Yes, a will can create a trust, known as a testamentary trust.  Instead of leaving property to beneficiaries outright, assets are left to the testamentary trust, for management and delayed distribution to the beneficiaries.  If there is a possibility that a minor will inherit from an estate, creating a testamentary trust inside the will for the benefit of the minor is a best practice – and will avoid the expense and hassle of a guardianship.

Are There Restrictions on Who You Can Leave Your Property To?

Yes, many states impose restrictions on who you can leave certain property to.  For example, Florida’s homestead laws restrict who you can leave your primary residence to if you have a spouse or minor children.

Does a Will Have to be a Certain Length?

No, as long as the will has some effect at death and is otherwise valid, a will need not be of a particular length.  A one page will can be just as valid as a 50 page will. A very long will would typically be that long because the will sets up testamentary trusts inside the will, and the terms of a trust would normally be more complex than a simple will.

What is the Effect of Community Property on a Will?

The will itself will not be affected by community property owned by the Decedent at death.  Community property laws control what property is owned by the Decedent at death, and what property is owned by the surviving spouse.

Learn more about community property.

Who Can be a Personal Representative?

In general, a non-felon adult can be a Personal Representative.  Some states impose restrictions.  For example, Florida does not allow a non-Florida resident who is not related to the Decedent to serve as a Personal Representative.

Can a Will Be Amended?

Yes, a will can be amended.  The amendment is known as a codicil.  Any part of the will can be amended.

What Assets are Controlled by the Will?

Only assets in the name of the Decedent are controlled by a will.  Assets held within a revocable trust are not subject to the will.  Also, assets that are jointly titled with rights of survivorship are not subject to the will.  Other assets have beneficiary designations that control who receives the assets at death, such as a life insurance policy or an Individual Retirement Account (“IRA”).  Of course, if the asset has no beneficiary designation, it may end up inside the probate estate, subject to the terms of the will.

See the diagram that shows what assets are probate assets.

What Do You Do With a Will When Someone Dies?

Wills need to be deposited with the court in the county where the Decedent was living before death.  Wills are public documents, meaning any member of the public can inspect and copy a will.  A will is not normally deposited before death, but some states do allows wills to be deposited prior to death.

Can a Surviving Spouse Challenge a Will?

A surviving spouse can opt to receive an elective share from the estate – which is a minimum percentage of assets.  Most states set the percentage at 30% or one-third of all assets.  Some states do not have an elective share, but most of those states are community property states.  When a spouse elects to receive the elective share, it is not really a direct challenge to the will – just a request to receive more than what the will authorizes.

Learn more about surviving spouse rights in all 50 states.

Can Anyone Challenge a Will?

No.  Only persons with standing can challenge a will in a will contest.  In general, standing is based on what the challenger would receive if the challenge to the will is effective.  For example, if a person challenges a will where they were disinherited, if the prior will includes the contestant as a beneficiary, that contestant would have standing.  If there is no potentially valid prior will, then the intestate heirs would have standing to challenge the will.

Learn more about “standing” in will contests:

What are the Grounds to Challenge a Will?

Undue influence and lack of capacity are the typical grounds to challenge a will.  Other grounds include fraud, mistake, and insane delusion.

Learn more about challenging a will:

Jeffrey Skatoff Esq

Jeffrey H. Skatoff, Esq.

Probate, Trust & Guardianship Litigation

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(561) 842-4868