A will is a legal document used to specify how to settle the affairs of a deceased person. Each state in the United States has its own specific laws and requirements for wills.
The making of a will must meet certain requirements to be legally binding:
• Maker must be of sound mind.
• Maker must be acting of own free will without undue influence or duress from others.
• The will must be signed by the maker and witnesses according to state laws.
A primary purpose of a will is to show how the decedent’s property (net of debts) will be divided. Other provisions in a will may include setting up a guardianship and/or trust for minor children. The will may include various strategies for tax planning purposes. It may name one or more executors or personal representatives who will be responsible for carrying out the provisions of the will.
From time to time, the maker of the will should include an attachment showing the location and description of all current assets and debts. This attachment should include information about any online affairs, such as addresses and passwords for bank accounts, brokerage accounts, and so on.
If the decedent did not leave a will, state law will determine how the decedent’s property will be divided. Normally the decedent’s spouse will get half of the assets and the remaining half will be split among the children. If the decedent has no surviving spouse or children, the property normally will be distributed to the decedent’s closest living relatives. If no living relatives can be found, the property normally will go to the state.
Where the assets of the decedent include real property (land and buildings or other improvements), the will usually must be probated in court. Probate is a legal process used to settle the affairs of a deceased person. The probate court ensures that any debts and taxes are paid, and any remaining assets are distributed properly. The court issues various orders to carry out the provisions of the will according to state law. The executor or personal representative usually hires an attorney to help with this process. In many states, probate may not be required if the decedent lacked substantial assets.
From time to time, a will may be changed. The probate court needs to have the last will and all subsequent amendments and attachments.
Where the decedent left substantial assets, the provisions of the will may be contested in court. Those parties who feel they were not properly provided for may claim that the will being probated is invalid or needs to be revised. Sometimes these disputes may drag on for years.
Where the decedent lived in two or more states or has real property in two or more states, the probate process may become very complicated
It is human nature for people to avoid thinking about their death. For this reason, it is imperative that some responsible party insists that a person who needs a will has one made. Several copies of the will should be prepared and placed where one can be obtained when needed.
John Lutgens has been a lawyer in Vancouver Washington and the Portland metropolitan area since 1992. His practice emphasizes criminal defense, estate planning & probate, bankruptcy, family law, and business formation & acquisitions.