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Wills | Estate
Planning | Attestation | Revocation | Probate
Wills
In essence, a will is a written
document which leaves the estate of the person
who signed the will to named persons or entities,
including shares or percentages of the estate,
specific gifts, and the creation of a testamentary
trust.
A will usually names an executor to manage the
estate, states the authority and obligations of
the executor in the management and distribution
of the estate, sometimes gives funeral and/or
burial instructions, nominates guardians of minor
children and spells out other terms. To be valid
the will must be signed by the person who made
it, be dated and witnessed by two people. If the
will is still in force at the time of the death
of the testator, and there is a substantial estate
and/or real estate, then the will must be approved
by the court, managed and distributed by the executor
under court supervision. If there is no executor
named or the executor is dead or unable or unwilling
to serve, an administrator will be appointed by
the court. If there is no estate, including the
situation in which the assets have all been placed
in a trust, then the will need not be probated.
Estate Planning
Estate planning is the process
by which an individual or family arranges the
transfer of assets in anticipation of death. An
estate plan aims to preserve the maximum amount
of wealth possible for the intended beneficiaries
and flexibility for the individual prior to death.
A major concern for drafters of estate plans is
Federal and state tax
law.
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Attestation
An attestation clause, or a
clause certifying the proper execution of the
will, must usually be added after the testator's
signature. The following is a simple form of such
a clause:
Signed, sealed, published, and declared by Jane
Doe, the testator, as her last will and testament
in the presence of us, who at her request and
in her presence and in the presence of each other
have hereunto subscribed our names as witnesses.
As a rule, no particular form is prescribed by
the various statutes for the preparation of a
will so long as the testator's intent is in writing.
Revocation
A will is revocable until the testator's death.
The only exception to this occurs when two parties
simultaneously make mutually irrevocable wills
in which they name one another as their respective
beneficiaries and expressly give up the right
to revoke their wills. A testator may revoke his
or her will by destroying it, either by burning
or tearing it up, or by obliterating the signature.
Any part or the whole of the will may be revoked
by a codicil, or an amendment to the will, executed
with the same statutory formalities as the will
itself.
A valid later will revokes a prior will. Disposition
of property by the testator before death, as by
gift or sale, is not a revocation of the will,
although its effect may be similar to one.
Marriage of the testator subsequent to the date
of execution of the will revokes the will as to
the surviving spouse or children, who are entitled
to the same rights in the estate as if the testator
had died intestate, that is, without leaving a
will.
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Probate
No disposition of an estate is made after the
testator's death until the will is probated. The
probate of a will is a court proceeding up on
notice to the heirs and next of kin. Questions
frequently arise about the construction of the
terms of a will. The most important rule of construction
is that the intention of the testator as it appears
from the will shall be carried out whenever legally
possible; when the will is ambiguous, the circumstances
surrounding its execution may be examined in order
to ascertain the testator's intention.
The statutes of each state must be consulted
as to restrictions on a testator's disposition
of his or her property by will. In many jurisdictions
a will may not exclude a surviving spouse. The
degree of participation of the spouse in the estate
varies from state to state. Many jurisdictions,
however, permit a person to exclude children from
participation in the estate.
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Estate Planning Attorneys