What is a Will?
A will is a document that indicates how the writer wants their property divided after they die. After death, the document is ready by their county’s court who will see that those wishes are carried out as much as possible.
A will serves several important functions. One of the most important is to name an executor. This person will oversee the instructions of the will and see that the final accounts of the deceased are settled. The will can also give direction as to how taxes and debts are to be paid when the time comes. A will also can indicate who should serve as guardians for the children of the deceased, and who will take care of the children’s property.
Wills also can provide for pets, such as by naming a person or persons to take care of a pet or pets. The named caretaker may also receive an inheritance, with the suggestion that money be used to help take care of the pet. Such a suggestion, however, cannot be enforced because pets cannot inherit actual property, and indicating specific conditions for a person’s inheritance is not allowed. A will is also not the place to leave instructions for final arrangements. It also cannot override an existing trust or insurance policy that indicates a beneficiary who should be paid upon the person’s death.
Making a will is an easy thing to do from a legal standpoint. The person must have a strong enough mental capacity to understand how to write a will without coercion from another person. Having “capacity” is often used interchangeably with having “sound mind.” The document should be at least a partial list of a person’s property, and should name beneficiaries for those items. A will should be as detailed as possible. However, wills can be revised as much as they need to be, so if someone is unable to take a complete inventory of the things they own it should not be a reason for putting off writing a will. Once written, the will should be signed by the writer and two witnesses. Some people choose to have their will notarized, but it is not a requirement.
What is Probate of a Will?
It can be difficult for some people to understand how wills and probate relate to one another. A will’s probate is the legal process by which a will is proven to be either valid or invalid and by which a person’s estate is distributed. The court reviews the will and determines whether the provisions indicated are ones that qualify for the probate process.
The process of probate is usually overseen by whomever the deceased had named to act as executor of the will. If no will exists, the court assigns a personal representative to take care of the associated tasks.
How to Probate a Will
Many different things are involved in the will probate process, and exactly what needs to be done can vary depending on the size of the estate and how many provisions have already been made through insurance policies, or other beneficiary accounts that have predetermined how assets are to be distributed. The executor or representative will need to take inventory of the deceased person’s property and assets, liquidate outstanding debts and taxes, and distribute property to the person’s heirs.
How to Contest a Will
Contesting a will is a big challenge; the vast majority are easily passed through probate with few if any issues. If a will is contested, the person who wrote it obviously cannot defend what has been written. Still, there are times when contesting may be the appropriate action. Here are some reasons for challenging the document.
The Person Did Not Have Testamentary Capacity
The law assumes that most adults over 18 years have testamentary capacity, and that those under 18 do not yet have this capacity. In general, a will written by a person under 18 is not considered valid. Exceptions are sometimes made if the minor had served in the military, or if he or she was married.
Challenging an adult’s testamentary capacity often leads to litigation. Most often the challenge comes because the person who has made the will was suffering from some form of disorder that compromised their mental state. Common claims point to senility, dementia, the influence of a substance, or insanity. A contester must show that the person making the will was incapable of understanding what he or she was asking for. They may not be able to understand how much property is worth, the difference between who they are expected to provide for and who they have named as beneficiaries, what it means to make a will, and how these factors come into play as property is distributed.
Fraud, Forgery or Undue Influence
Fraud, forgery, and undue influence are also cause to contest a will. At times, a vulnerable person might have been coerced into leaving a good portion of their estate to someone. Undue influence assumes that the free will of the author was somehow compromised when the will was written.
When a revised will is made, the older will should be destroyed, but this doesn’t always happen. Dating a will at the time that it is made and mentioning that a previous will is void are both good ways to protect a more recent document that is truly the “last” will and testament.
The will was not properly witnessed. In most states, heirs of a person’s estate cannot serve as witnesses. Handwritten wills made without a witness are submittable, but they are also most easily contested. The person’s actual handwriting is the only identifier that can verify the will’s validity.
The will fails to make required provisions.
Wills need to clearly state that they are the product of their makers’ own authorship. A will needs to make at least one specific provision to leave property to a specific heir. Appointing an executor is also required in some states. If you need help writing a will, performing probate duties as a named executor of a will, or feel that a loved one’s will should be contested, Wright Probate is ready to talk to you about your situation.