Wills

What is a Will?

In the law, a will or testament is a document by which a person (the testator) regulates the rights of others over his property or family after death. For the devolution of property not disposed of by will, see inheritance and intestacy. In the strictest sense, "will" is a general term, while "testament" applies only to dispositions of personalty (this distinction is seldom observed). A will is also used as the instrument in a trust.

The conception of freedom of disposition by will, familiar as it is in modern England and the United States, both generally considered common law systems, is by no means universal. In fact, complete freedom is the exception rather than the rule. Civil law systems often put some restrictions on the possibilities of disposal.

Advocates for gays and lesbians have pointed to the inheritance rights of spouses as desirable for same-sex couples as well, through same-sex marriage or civil unions. Historically, courts have been more willing to strike down wills leaving property to a same-sex partner for reasons such as incapacity or undue influence.

Legal requirements for creation of a Will.

Any person over the age of 18 can draft his own will without the aid of an attorney. A will that is properly drafted, executed, and witnessed cannot lead to it being contested. In order for it to be valid, however, every will must contain the following:

* The testator must clearly identify himself as the maker of the will.

* The testator must declare that he revokes all previously-made wills and codicils.

* The testator must demonstrate that he has the capacity to dispose of his property, and does so freely and willingly.

* The testator must sign and date the will, usually in the presence of at least two disinterested witnesses (persons who are not beneficiaries).

Some states recognize a holographic will, made out entirely in the testator's own hand. A minority of states even recognize the validity of nuncupative (oral) wills.

A will may not include a requirement that an heir commit an illegal, immoral, or other act against public policy as a condition of receipt. It also cannot be used to disinherit a spouse. Under state laws, a surviving spouse is entitled to at least a portion of the testator's estate.

It is not only a good idea, but essential that the testator give his executor the power to pay debts, taxes, and administration expenses (probate, etc.). Warren Burger's will did not contain this, which wound up costing his estate thousands.

Revocation of a Will.

Some jurisdictions hold that revocation of a will automatically revives the most recent will; others hold that revocation leaves the testator with no will, so that his heirs will inherit by in testate succession. Some also allow partial revocation if the testator crosses out a specific clause. Others require that either the entire document be revoked, or none of it may be. Some jurisdictions hold that the execution of a new will revokes all previous wills, irrespective of whether it does so expressly. Others hold that a new will only over-rides the clearly inconsistent provisions of an earlier will.

What is Estate Planning?

Estate planning is the process of accumulating and disposing of an estate to maximize the goals of the estate owner. The various goals of estate planning include making sure the greatest amount of the estate passes to the estate owner's intended beneficiaries, often including paying the least amount of taxes. Additional goals typically include providing for and designating guardians for minor children and planning for incapacity.

Estate planning tools

The tools involved in estate planning include the will, various types of trusts, powers of appointment, various forms of property ownership (Joint tenancy with rights of survivorship, tenancy in common, tenancy by the entirety, etc), gifting, and powers of attorney, specifically the durable financial power of attorney and the durable medical power of attorney which is also commonly known as a living will.

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