FAQs About a Will Portfolio
- What Is a Will?
- What Are the Requirements for a Will?
- What Are the Accepted Forms of a Will Under State Law?
- Is a Videotaped (Filmed) Will Valid?
- How Can a Will Be Revoked?
- Under What Grounds Are Wills Usually Challenged?
- What If You Die Without a Will?
- The Price of Dying Intestate
What Is a Will Portfolio?
A Will Portfolio is a basic estate plan containing
- Last Will and Testament
- Durable Power of Attorney
- Advance Health Care Directive
With a Last Will and Testament, you designate who you wish your beneficiaries to be and what their inheritance should consist of. You can appoint the person or persons who you would wish to be guardians of any minor children you may leave behind. In your Will you will also nominate the person or persons you wish to act as your personal representative during probate, and to ultimately be in charge of distributing your estate to your heirs.
Did you know that nearly 70% of Americans have no estate plan at all? As a minimum measure, a Last Will and Testament could be a very important legal document to own. Without it, the State would decide for you how your assets would be distributed and who would become guardians of your minor children.
What Is a Will?
A will is a written declaration by an individual (testator, if male / testatrix, if female & referred to hereafter simply as testator) of his or her intentions for the disposition of assets after death, if the will was prepared and executed in accordance with legally required formalities, and the testator was competent and not under duress, the probate court will generally order that the executor carry out the testator’s plan.
A will usually does not necessarily direct the disposition of all of a person's property, The most common examples of property that does not pass by will are jointly held property and life insurance payable to a named beneficiary. While a will is an essential part of most any estate plan it should be viewed as only one part of the total picture.
What Are the Requirements for a Will?
Testamentary Capacity - "Testamentary Capacity" simply means that a person must be:
Of sound mind - The testator must be of sound mind at the time the will is executed. If the testator subsequently becomes of unsound mind, the validity of a previously made will is question that a court may ultimately have to determine
Of the minimum legal age to execute a valid will - Most states set 18, as the minimum age to make a valid will. This age is often the same as the age of majority, but a few states are exceptions.
Fraud, Duress or Undue Influence - The testator must not have been under duress, undue influence or some type of fraud at the time the will was executed. If this can be proven in court, the will may be thrown out. not affected. Whether a person was of sound mind when a will was signed is a factual
What Are the Accepted Forms of a Will under State Law?
Wills generally should be typewritten. An Oral Will (called a nuncupative will), recited by the testator in front of witnesses, may be accepted as valid in some states if it is:
- Pronounced during the testator's final illness
- Reduced promptly to writing by the witnesses
- Filed promptly with the probate court
Obviously, it's not wise to wait this long and hope that all witnesses hear the same thing.
A will in the testator's own handwriting (called a holographic will) may also be accepted as valid in some states. However, the testator's handwriting may be illegible, or his intentions may be expressed in a confusing or inconsistent manner.
State law usually requires two or three adult witnesses to witness the execution of the will. If a will is contested in court, witnesses may be called upon to describe the testator’s state of mind and the actual circumstances surrounding the execution of the will.
Is a Videotaped (Filmed Will) Valid?
A videotaped (or filmed) will is not currently enforceable in ANY State. Many practitioners however, view such video wills as a good supplement to a valid will as it may serve to demonstrate mental competence, thus potentially thwarting misguided challenges to your will. If using such as device, make sure your video taped wishes and instructions do not materially conflict with your “valid” will, as it may be used against your Will to challenge mental competence, thus negating your will in some important respect.
How Can a Will Be Revoked?
A will can be revoked by the intentional physical destruction of the will or by the execution of a subsequent will. However, the testator must be of sound mind at the time either of these events occurs to accomplish the revocation.
In some cases, the law "forces" a revocation. For example, marriage revokes a prior will of either spouse in most states. In some states, divorce, annulment or the birth of a child also revokes a prior will.
Under What Grounds Are Wills Usually Challenged?
Heirs may challenge the validity of a will by initiating a will contest in probate Court on a variety of grounds:
- The testator was under duress, undue, influence or fraud at the time of execution.
- The testator was of unsound mind or below the minimum legal age.
- The testator's signature was forged, the will was not executed in accordance with required legal formalities .
- The testator revoked the will.
What If You Die Without a Will?
If a person failed to execute a will or died without a valid will, he or she is said to have died "intestate," and his or her property will be distributed under the Intestate Succession statutes of the State. These statutes do not take into consideration the decedents unique personal situation and the distribution is unlikely to be in total accord with what the decedent would have wished.
The intestacy statutes only take into consideration family relationships: they do not take into account such factors as taxes, administration costs, or estate shrinkage.
The Price of Dying Intestate
Suppose a husband has a wife and two minor children, if he were to die without a will, he would probably be shocked to learn that, in many states, his wife would only receive one-third of his probate property. The other two-thirds would go to the children under the intestacy laws.
Suppose a widow leaves two children, one healthy child and one with a physical handicap. A will could recognize the greater needs of the handicapped child, but the intestacy laws will treat the children equally.
Suppose that Aunt Martha would like a keepsake to go to her favorite niece. She can accomplish this by a will, but the intestacy laws would not recognize Aunt Martha's intentions for specific assets that she owned.