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 What Is A Testamentary Will?

A will is a legal instrument that details the distribution of a person’s estate to specific people and entities that are specified within the legal document. In legal terms, the individual creating the will is called a testator, and they appoint an executor. The executor is responsible for overseeing the distribution of the estate in accordance with the testator’s wishes, upon the death of the testator..

A traditional will, or last will and testament, may also be referred to as a testamentary will. Once again, a will is a legal document used to transfer a testator’s estate to its beneficiaries upon the death of the testator. Testamentary wills are most commonly used to appoint legal guardians for minors, as well as select an executor and create a trust for beneficiaries.

In most states, the will must have each of the following in order to be considered valid and therefore legally enforceable:

  • The will must be in writing;
  • The will must be signed by the testator. Although it is not usually required, it is advised that a will should also be dated. Doing so can reduce any confusion regarding which is the correct will if there are multiple wills. If the testator is not able to sign for themselves, such as if they are unable to use their hands, they are allowed to make a mark. The witnesses to the will can attest that the testator did in fact sign it;
  • The will must be witnessed by at least two or more competent witnesses. Additionally, the witnesses generally cannot be interested. Being interested means that the witnesses cannot be named in the will or otherwise have a financial stake in the will; and
  • The testator must have “testamentary capacity.” Testamentary capacity is generally met if the testator is above the age of eighteen, is in the military, or is legally married. The testator must also know:
    1. That they are creating a will;
    2. The effect of the will is to distribute their property upon their death;
    3. They understand the property in which they are distributing; and
    4. They understand who is receiving the property.

However, these requirements will vary depending on the state in which the testator resides, as well as what type of will is being created. An example of this would be if the will is a holographic will. It typically does not need to be witnessed, so long as the will is both written and signed by the testator.

Are There Different Types of Wills?

As previously mentioned, a testamentary will is just one type of will. There are several different types of wills, each of which have their own requirements in order to be deemed valid.

  • Simple Wills: A simple will distributes property from the estate of a testator whose finances are uncomplicated. These are formulaic wills, in which the testator checks the appropriate boxes and fills in the blanks. A simple will can be drafted without an attorney by filling out an easy form that can be found through many different outlets. However, although many utilize simple wills, some states deem simple wills as invalid;
  • Testamentary Trust Wills: A testamentary trust will is a will that puts some or all of your property into a trust. A trust distributes your assets to a beneficiary, but is administered by a third person. This third person controls when and how the assets are distributed to the beneficiaries named in the will;
  • Joint Will: A joint will is created by two testators instead of just one. In the will, each testator leaves their property to the other. A joint will states that the first testator to die leaves everything to the surviving testator;
  • Living Wills: A living will does not distribute property upon the death of the testator. Rather, a living will provides instructions regarding the type of medical treatment you wish to receive should you become too ill to communicate. The instructions should be clear and detailed; however, the requirements for a living will are considered to be more flexible than those of a testamentary will; and
  • Holographic Will: A holographic will is a handwritten will that is not witnessed. A holographic will must be written entirely in the handwriting of the testator, and must be signed and dated. Holographic wills are often created in emergency situations in which the testator believes that death may be imminent. For this reason, the requirements for the validity of a holographic will are less stringent than for other wills.

What Is Testamentary Inheritance? Can a Criminal Act Keep Me From Inheriting under a Person’s Will?

Very simply put, testamentary inheritance refers to receiving a part of the testator’s estate because you were named as a beneficiary in their will. Committing a criminal act can keep you from inheriting under a person’s will.

Specifically, if you have been named as a beneficiary under someone’s will but committed a criminal act against the testator, doing so can keep you from inheriting in some circumstances. Each state has a different list of criminal acts that may prevent inheritance. Some of the most common examples of such crimes could include:

In order to be prevented from inheriting under the will, the beneficiary must actually be convicted of the crime. This means that the beneficiaries may not simply be charged with a crime. Additionally, many states draw a line between intentional and unintentional killings.

An example of this would be how in some states, a beneficiary convicted of first degree murder or voluntary manslaughter committed against the testator cannot inherit. However, a beneficiary convicted of second degree murder or involuntary manslaughter may still be allowed to inherit.

What Happens to Property a Criminal Beneficiary Would Have Inherited?

Each state has a different process for dealing with property or money that a person would have inherited, had they not been convicted of a disqualifying crime. In some states, the intended beneficiary is treated as though they died before the testator. As such, the inheritance will be given to the children or close family of the delinquent beneficiary.

Other states have determined that it is not fair for the criminal actor’s family to benefit from the criminal act. According to the laws of such states, the property or money will be divided equally among the other beneficiaries under the will.

What Else Should I Know About Wills in General?

If you have minor children, a will can also serve as a declaration of whom you wish to be the guardian of your children when you die. This is an important element of the will, due to the fact that if both parents pass away with minor children, the state court and social services will appoint someone to raise your children.

If a person dies without a will, they are considered to be intestate. What this means that as opposed to your estate being distributed according to your wishes, the state in which you pass away will determine who will get your property. An example of this would be if a person dies unmarried, and has no children. If their parents are also dead, their sibling will likely receive the bulk of their estate.

The testator needs to designate an executor in their will prior to passing. An executor is the person named in the will responsible for settling the estate of the testator according to the terms of the will. Duties of an executor generally include the following:

  • Taking inventory of the testator’s estate;
  • Appraising and distributing the assets according to the testator’s wishes;
  • Paying any taxes on property; and
  • Settling any outstanding debts owed by the deceased.

The executor is legally bound to act in the best interests of the testator, which includes following their wishes as outlined in the will. If you have been named as an executor, and you do not want to serve or are not able, you will have to file a declination. A declination is a legal document that declines your assignment as executor.

Do I Need a Lawyer for Issues Regarding Inheritance and Criminal Acts?

If you are concerned about your right to inherit because of past criminal conduct, it is imperative that you consult with a skilled and knowledgeable estate lawyer. An experienced and local wills and trusts attorney can advise you of your legal options regarding inheritance and criminal acts. Additionally, an attorney can also help protect your inheritance rights, and represent you in a court of law, as necessary.

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