11/26/2014

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What Is A Will?

A will is an instruments designed to enable an individual to leave his or her assets to whom he or she chooses, such as cash, real estate, and personal property, before he or she dies.

A will grants disposition of real property (called a devise) or personal property (called a bequest) intended to take place after the death of the individual (called the Testator) who is making the decision as to how to pass his assets to his heirs or whomever he has in mind.

Before the disposition of any assets can take place in accordance with the desires of the testator, the will has to be probated in court.

Living Trusts have become a more popular way of disposing assets because Living Trusts do not have to be probated.

A will may specify conditions that must be met before any or all of the property is passed on to the receiver of the bequest or devise.

The individual making the will must be of legal age, of sound mind, and must be free of undue influence by others.

A will is required by law to be in writing to be enforceable and must be signed and witnessed, but in certain cases, as in combat during wartime, a soldier may make an oral will which is enforceable.

And in some jurisdictions, an oral will may can be considered valid when death is eminent and there is no time to prepare a written will. Such oral wills have to be declared in front of a statutory number of witnesses, usually at least three, and put in writing within a certain number of days, usually six.

Oral wills are called nuncupative wills and can be used only in the disposal of personal property.

A holographic will is a will that is written entirely in an individuals own handwriting. This type of will is considered enforceable and may disposed of both real property and personal property.

In some states, a holographic will is valid without formal execution or attestation if it is completely written, dated and signed by the individual who makes the will but it must comply with the statutes of that particular jurisdiction.

All witnesses to a will must be competent and must not be a beneficiary of the will. If the witness is a beneficiary, the will is considered invalid.

A will can be revoked any time before the testator's death except when two parties make mutually irrevocable wills simultaneously in which they name each other as their respective beneficiaries and expressly give up the right to revoke their wills.

A new will or living trust supercedes an earlier will.

Since wills can be contested in court, it is advisable to hire an attorney to prepare it for you.

 

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