In this section, we'll describe a Last Will and Testament in detail, including the requirements for a Last Will and Testament, when you should make a Last Will and Testament, and what a Last Will and Testament can and cannot do for you and your loved ones.
First, it is important to understand that a Last Will and Testament is a legal document that allows you to (1) name one or more individuals or entities to manage your estate upon your death, (2) provide for the transfer of your property upon your death, and (3) name one or more guardians for your minor children.
Historically, a "last will" (or a "will") referred to a legal document that disposed of an individual's real property while a "testament" disposed of an individual's personal property.
Today, both real and personal property are disposed of under a single document; thus giving rise to the popular title of "last will and testament."
Each state has its own requirements for a will, but all require that you be of legal age (referred to as the "age of majority") and of sound mind (i.e., having the ability to know and understand what you are doing). For example, most states require that you be at least 18 years of age in order to make a will. However, Georgia's minimum age is 14 and Louisiana's minimum age is 16. Some states also make exceptions if you are emancipated, or legally married, or serving in the armed forces. In addition to those requirements, most states also impose the following requirements:
a. That your will be in writing and signed by you. As the creator of your will, you are sometimes referred to as the "testator" if a male, or as the "testatrix" if a female. While most states require that your will be made in writing and signed by you, some states do authorize a holographic will (i.e., a written will that is not witnessed, but made substantially in your own handwriting) under limited circumstances. A number of states will relax the formalities if you are a soldier on active duty in a war zone. A minority of states even recognize the validity of a nuncupative will (i.e., a will that is made orally). Nuncupative wills are generally restricted to military personnel or merchant sailors. In addition, the amount and type of property that can be disposed of by a nuncupative will is somewhat limited. For a complete list of each state's requirements for a last will and testament, please see our section entitled, "Requirements for a Will."
b. That your will clearly identifies you as the creator ("testator") and clearly indicates that you are creating a last will and testament. From a legal standpoint, this is commonly referred to as "publishing" the will. A typical publication of a will would look something like this:
c. Although not a legal requirement, it's generally a good idea that your will revoke all prior wills and codicils made by you. That's because, if your will is lost or destroyed, or not legally valid, then the courts may admit an earlier will to probate, and the earlier will may be contrary to your wishes. However, even if your will does revoke all prior wills and codicils, you should also be aware that many states have adopted a doctrine known as "Dependent Relative Revocation," which allows a court of competent jurisdiction to disregard a revocation that was based on a mistake of law, as long as the court finds that the provisions of your prior will come closer to fulfilling your intentions than having no will at all. For more information on this doctrine, see our section entitled "Dependent Relative Revocation" below. See, also, an article entitled "Doctrine of Dependent Relative Revocation" by the law offices of Adrian Philip Thomas, P.A.
d. That your will be signed and dated by you in the presence of at least two witnesses. Most states also require that the witnesses be disinterested; i.e., that they not be related to you or be named as a beneficiary under your last will and testament. However, each state has its own requirements, so it's necessary that you check the requirements of your state. For example, some states, notably Pennsylvania, have abolished any requirement for witnesses. In addition, Louisiana requires both attestation by two witnesses as well as notarization by a notary public. In addition, "holographic wills" (i.e., handwritten wills) are generally valid without any witnesses; however, many states do not recognize holographic wills.
e. That your signature appears at the end of your last will and testament. If this is not done, any text that follows your signature will either be ignored or may invalidate the entire will. That your will clearly identifies one or more of the beneficiaries of your property. However, some states will allow your last will and testament if it just (1) revokes a prior will, or (2) revokes a gift made under a prior will, or (3) just names a personal representative (i.e., an executor or executrix).
While there is a fair amount of uniformity among all the states as to the requirements for a valid last will and testament, there may be important differences as well. For this reason, you should always consult the specific requirements of the state in which your will is to be created. A good place to start is our section entitled "Requirements for a Will."
As stated above, a last will and testament is an important document for several reasons: First, it allows you to (1) name one or more individuals or entities to manage your estate upon your death, (2) provide for the transfer of your property upon your death, and (3) name one or more guardians for your minor children.
While these are very significant and valuable benefits, it is important to note that there are some important restrictions as to what can be accomplished under a last will and testament. First, your will cannot require that a beneficiary commit an illegal or immoral act in order to receive a gift under your will. Second, your will cannot disinherit your spouse. All states have passed laws that allow a surviving spouse to receive the greater of the amount provided by statute or the amount provided under your will. Third, you are permitted to disinherit one or more of your children under your will, except in Louisiana. However, if you fail to mention one of your children in your will, most states will presume that you either forgot to mention your omitted child or you thought your omitted child was dead. In that case, most states provide that your omitted child (called a "pretermitted child" or "pretermitted heir") will be entitled to receive an inheritance from your estate equal to what that child would have received if you had died intestate; i.e., without a valid will.
Upon your death, the normal practice is for someone to locate your will and present it to the court having jurisdiction over your estate. Normally, the court having jurisdiction over your estate would be a probate court (or similar court designated to hear probate matters) within the city or county in which you were domiciled at the time of your death.
Once presented to the court, someone (generally your surviving spouse, child or other family relative) will petititon the court for admission of your will to probate. At that point, the court will schedule a hearing to determine whether your will should be admitted to probate. At the same time, it will send notice of the hearing to everyone who might have an interest in your estate, including those individuals and entities specifically named in your last will and testament and those individuals who are your heirs-at-law. Your heirs-at-law are notified because, if your will is not admitted to probate, then your heirs-at-law might be entitled to a share of your property under your state's intestacy laws.
Many states will forego a hearing on the admissability of a will if all of the parties-in-interest sign a statement indicating that they do not object to the admission of the will to probate. In that case, the court will admit the will without a hearing.
If a hearing is held by the court, any party who has an interest in your last will and testament (referred to as "standing") is entitled to object to its admission to probate. If no objection is made, the court will admit your will to probate without a hearing. At the same time, the court will appoint a personal representative to settle your estate. In most cases, the court will appoint the individual(s) or entity(ies) you named in your will to serve as your personal representative. However, the court is not bound by your appointee(s) and may appoint a totally independent person or entity if it finds that one or more of your appointees are not suitable for one reason or another. If the court does approve your appointee(s), then that person or entity will be referred to as your Executor, if a male or an entity, or as your Executrix, if a female, although many states now prefer to simply refer to anyone serving in that position as your Personal Representative.
If an objection is made to the admission of your will, then the court will conclude the hearing and schedule another hearing to consider the merits of the objection. This hearing, which is commonly referred to as a will contest, is actually conducted as a court trial whereby both the proponents and the opponents of the last will and testament are able to present their cases in accordance with the proscribed rules of evidence and procedure. In most will contests, the proponents of the will are called upon first to demonstrate that the will meets all the requirements for a valid will; i.e., that the will is written and that it is signed by the testator and witnessed by two witnesses. At least one witness is called upon to testify that he or she did, in fact, witness the testator's signiture and that the testator declared the document to be his or her last will and testament.
However, many states now provide for a "self-proving affidavit" by the witnesses to the will, which is an affidavit made by the witnesses at the time the testator signs his or her will, which is then attached to the will. The self-proving affidavit attests to the fact that the testator signed the document in the presence of the witnesses, that the testator declared the document to be his or her last will and testament, and that, at the time of signing the will, the testator appeared to be of sound mind and memory and competent to make a last will and testament. If a state authorizes a self-proving affidavit and if the will includes a self-proving affidavit, then the witnesses to the will are not required to be present and give testimony during the will contest. For a sample self-proving affidavit, please see our sample will, entitled Simple Will - 1. You should also check our section entitled "Requirements for a Will" to check whether a particular state authorizes a self-proving affidavit and, if it does, whether a statutory form for a self-proving affidavit is provided. Most states that do authorize a self-proving affidavit will also provide a statutory form as well.
If, at the conclusion of the will contest, the will is ruled invalid for any reason, then the testator may be deemed to have died intestate (i.e., without a will). unless a prior will is then admitted as a valid will. If the testator is deemed to have died intestate, then the court will appoint an administrator to settle the estate and any property remaining after the payment of all debts of the decedent, all administrative costs, and all estate and inheritance taxes, will be distributed to the decedent's heirs in accordance with the "intestacy laws" (often referred to as the laws of "descent and distribution") of that state. For a complete list of the intestacy laws of each state, please see our section entitled, "Intestate Succession | State Intestacy Laws."
Your last will and testament can be revoked in a number of ways. The physical destruction of your will is one way of revoking it. If you deliberately burn it or tear it apart, or write all over it so that it becomes unintelligable, then most states will treat it as being totally revoked and of no force or effect. However, if your will is only partially destroyed so that only part of the text or a particular provision is crossed out, then many states will treat it as being only revoked as far as the destroyed portion is concerned. Still other jurisdictions will either ignore the attempt or hold that the entire will was actually revoked. What really matters is how much of the will remains and whether a court can determine whether it represents your wishes or not.
Your Last Will and Testament can also be revoked through the actions of someone else if you are incapable of physically destroying it on your own and it is done in your presence and the presence of witnesses. And, some states may presume that you intended to revoke your will if it was last seen in your possession and it cannot be found after your death.
Of course, you may also revoke your will by the execution of a new will. As stated above, most wills contain a provision that expressly revokes all prior wills and codicils previously made by a testator.
If your last will and testament is revoked, there is always the question as to whether you intended to revive a prior will; assuming, of course, that the prior will is still in existence. Some states hold that the complete revocation of a will automatically revives the most recent will, the theory being that you probably would want your property distributed in accordance with your most recent will rather than through intestacy; i.e., without a will. Other states, however, hold that the complete revocation of a will leaves no will in effect, the theory being that you probably would want your property distributed in accordance with the laws of intestacy rather than in accordance with your prior will. This is one of the reasons why it is important that you review your estate plan from time to time. You should also be familiar with the laws of intestacy in your state so that you know exactly who will get your property in the event you die without a valid will. For a complete list of the intestacy laws of each state, please see our section entitled, "Intestate Succession | State Intestacy Laws."
If you are divorced sometime after you execute your will, your last will and testament remains in effect. This is one reason why it is important to review your will when there are changes in your personal family situation. Many states, however, will treat your former spouse as if he or she had predeceased you. In that case, your former spouse will not be entitled to any gifts under your will.
Finally, if your last will and testament is accidentally destroyed by fire or water damage, or because it was inadvertently thrown away, many states will admit a photocopy of your will to probate. However, to admit a photocopy, there must be evidence that it was accidentally lost or destroyed.
There is also an equitable doctrine in the law that tries to figure out whether you intended to revive a prior will when a later will is lost or destroyed. This equitable doctrine is known as dependent relative revocation. Under this doctrine of dependent relative revocation, the courts can disregard a revocation of your last will and testament if it is found that the revocation was based on a mistake of law on your part as to the effect of the revocation. For example, if you mistakenly believe that an earlier will that you made will become effective if you revoke one that you made later, the court may decide to probate the later revoked will if the court believes that it comes closer to fulfilling your intentions than not having a will at all.
The doctrine of dependent relative revocation also comes into play if you make new will and revoke on old will under the mistaken belief that the new will is valid. However, if the new will is found to be invalid for any reason, a court may apply the doctrine to reinstate and probate the old will, provided the court finds that you would prefer the old will to no will at all.
As you can see, there's quite a lot to think about when considering a last will and testament. But, don't worry. In this section, we'll break down the various issues involving a last will and testament into easy-to-understand language. To get started, we've divided our discussion of a last will and testament into the following categories:
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