What Is a Will?
A will is a legal document created by a person that details how to divide assets upon his or her death. The person writing the will is known as the testator, while the people who will receive those assets are known as heirs. Wills can be simple or complex, and most are not filed with the probate court until the testator's death.
In order for a will to be considered valid by a probate court, seven requirements must be met. If the will is not determined to be valid, then the probate court judge will determine how the testator's assets will be divided.
- 1. The testator must be at least 18 years old. There are some states that may require a testator to be older.
- 2. The testator must be of sound mind. The standard for proving that the testator is not of sound mind is quite high. In some cases, relatives who are not pleased with the way the testator's assets are divided may try to challenge the will by alleging that the testator was not of sound mind. However, proving this can be difficult because it takes more than the testator simply being absentminded.
- 3. The testator must declare in the will his/her intent to have his/her assets divided as stated. In addition, the testator must declare that the will is his or her final word on his assets.
- 4. The testator must sign the will unless he or she is unable to due to an accident, illness or illiteracy. His or her attorney or a witness may be able to sign the will on the testator's behalf, although such laws vary by state.
- 5. Some states may allow a testator to provide a copy of an oral will; however, most states require a written will. It is best to avoid writing this important legal document by hand.
6. Most states require that a will is witnessed by two adults. Those witnesses should be "disinterested parties" in the will. This means that the testator is not leaving anything to the witnesses.
- 7. A will must be executed to be valid. This means there must be a statement at the end that it is the testator's will, when and where it was signed and that it was signed in front of the witnesses.
A will should be reviewed from time to time to ensure that it still meets the testator's inheritance objectives. Major life changes can occur that require a change in a will. These include:
- The testator marries. A will may be changed to add a spouse.
- The testator divorces. A will may need to be changed if the testator does not want his or her ex-spouse to inherit the testator's assets.
- The testator has children. A will can specify a guardian for the testator's children, as well as setting up a financial trust.
- The testator has grandchildren. If a testator wants to leave property or money to his or her grandchildren, then the will needs to be changed to reflect those wishes.
- There is a significant change in the testator's financial situation. If the testator's financial situation improves significantly, additional beneficiaries may need to be added.
- The testator moves to another state. Because each state has different requirements for wills as well as for estate taxes, it is important that the will is reviewed to account for those requirements and tax structure.
Because of the complex requirements in creating a valid will, the advice of a legal professional can prove truly beneficial. This may also allow the probate process to proceed more quickly and at less expense.