A will is a legal document and financial planning tool that designates how a party’s property and assets will be transferred upon that party’s death. A will is drafted by a testator. The parties to whom a testator transfers property or assets are known as beneficiaries or heirs.
A will applies to both real property and personal property; however, in the context of this section, we will explore the laws regarding real property wills.
In order to create a will, a testator must possess the legal and mental capacity to do so. A testator must be an adult of reasonable mental faculties, and cannot be in a state of incoherence when the will is executed.
A will can be drafted can by any party. However, due to the specificity of most will requests, it is advised that a testator hire a professional attorney to draft a will.
Additional requirements to create a will include:
Must include the words “will”, or clearly describe the purpose of the document. The document cannot be contrived as random; it must be seen as the official document consented to by the testator
Must clearly identify the testator
Must clearly identify the name(s) of the heir(s) to which property is being transferred.
Must clearly state how a testator’s estate will be split up among heirs
Must appoint an executor who is responsible for overseeing the will upon the testator’s death
Must be signed and dated by the testator on the will’s last page
Must be signed and dated in the presence of a third party who is not a beneficiary in the will
A devise refers to the transfer of property through a will.
If there are multiple wills, the most recent document will be used. If there are previous wills or distribution documents, the testator must indicate that the current will is the only valid will, and that it supersedes any previous documents and/or arrangements. Older wills are not valid and do not constitute legal proof of one’s interest in a property.
A codicil is an amendment or change to a will.
If a testator destroys a will, the terms of the will are void.
Per stirpes describes how property is distributed when a beneficiary dies prior to a testator’s death.
A simple will is a will whose provisions are simple and straightforward. Due to the simple process of creating such a will, many testators create it themselves, rather than hiring a lawyer. The will should include the name of the testator, all beneficiaries, and the disbursement of assets following the testator’s death.
A joint will is created by two individuals for the purpose of transferring property rights and/or assets exclusively to each other. Upon the death of one testator, all property rights and/or assets will transfer to the other testator.
A pour-over will deems a living trust as its beneficiary. Upon a testator’s death, his or her property and assets are “poured” (or transferred) into a trust. Typically, a pour-over will requires a property to go into probate before being transferred into the trust.
A holographic will is a will that is not professionally drawn up and is not in writing or and is not created in the presence of witnesses. The only requirement of this will is that a testator hand-write all components, including the names of the beneficiaries and how real property should be distributed.
The main reasons why testators choose to use a holographic will is because they cannot afford the costs of hiring a lawyer and/or death is imminent and they do not have enough time to properly draft a will.
Because of the complicated laws that govern wills, and the difficulty in drafting a will without legal expertise, holographic wills are commonly deemed invalid.