“Most people likely know there are some basic documents they need for their estate plan. Those include a will, living wills or medical directives, durable powers of attorney for health care or property and side letters.”
USA Today’s recent article, “Preparing a will: What you need to know about estate planning documents, laws,” says that, technically, a will is called a “Last Will and Testament.” It’s a document designed to assure the integrity of the disposition process, declare the heirs of the estate and name the individual (the executor) who will manage the disposition process. A will is just one component of the estate planning process. The decedent’s will generally designates an executor or personal representative to coordinate the probate process.
A person must have testamentary capacity or sufficient capacity to execute a will. Adults are usually presumed to have that capacity. A person challenging a will must show that the person lacked sufficient capacity.
There are two types of wills. A holographic will is one that is self-written and doesn’t meet the requirements of state law. In some states, this makes the will unenforceable, but other states allow holographic wills, if certain conditions are satisfied. A nuncupative will is an oral will, and most state don’t recognize these wills as enforceable (but there are exceptions).
If you are said to die intestate, it means that you passed away without a valid will in place before your death. With no will, state intestacy statutes dictate who receives what portion of your assets and property that does not otherwise have a surviving joint owner or a designated beneficiary.
You may have heard of the term “codicil.” That’s an amendment of an existing will.
It’s smart to work with an experienced estate planning attorney, because there are plenty of state-specific wrinkles and tax ramifications that may not be apparent.
For instance, if you get divorced and remarry years later, and your intent is to have all of your assets pass to your children from your first marriage, you might think that since your will doesn’t name your new spouse, he or she can’t inherit from you. That’ wrong. You need a new will.
Some state laws say that a “pretermitted spouse” (a spouse not named in the will) is entitled to a share of the estate—unless the will expressly states that he or she isn’t to inherit. Nonetheless, even where the spouse is disinherited by the will, almost every state provides that a surviving spouse has the right to take a statutory share of the deceased spouse’s estate.
Speak with an experienced estate planning attorney, especially if your life has included second marriages, to make sure that your wishes are followed, and your family is protected.