Each jurisdiction has state laws governing wills. A will is a legal document that authorizes the distribution of your wealth according to your wishes after you pass away. If you do not take the initiative to create a will, those decisions will be made for you according to state law.
There are many different types of wills, and there are certain legal requirements that you must adhere to for a valid will. There are resources available on LegalMatch.com that can direct you in the right direction to find the assistance you need to prepare your will. Depending on your state, you can determine the local state regulations regarding wills.
Below is a breakdown of what validates and invalidates a will. A will is invalid if it was created under force, threats, or improper influence of another person. You can receive assistance regarding the will, but it must be done under free will. There cannot be any wrongful interference from others that forces you to draft your will in a certain way to distribute your property. It must be done through free choice and a sound mind.
You must have individual autonomy regarding the decisions made for your will. Moreover, the witnesses must confirm that you drafted the will through a sound mind and not through improper influence.
If any interested parties suspect that the will was formed under duress, fraud, or improper influence after your death, they can challenge the will’s validity. Your witnesses will have to testify in court regarding these claims.
What Is Not Covered in a Will?
Although, it is important to have a will for estate planning purposes. There are certain items that you cannot include in your will. Most jurisdictions have a uniform understanding of this and will not validate it if they notice those items. A will cannot have the transfer of certain types of assets, called non-probate property, which by operation of law or contract pass to someone other than your estate on your death. For example, real estate and other assets owned with rights of survivorship pass automatically to the surviving owner.
Additionally, some properties and assets do not need to be probated, meaning they cannot be a part of the will. These include property owned as joint tenants, jointly held bank accounts, payable-on-death accounts, life insurance proceeds to a specific beneficiary, and pension benefits with a designated beneficiary if you die.
As mentioned earlier, property owned through joint tenancy cannot be covered in the will. Joint tenancy is when you and another person have an undivided interest in the property and a right to own it after the other person dies.
For instance, this could be a home a couple shared as joint tenants. In the case of real property, this fact would be included in your title documents. After a co-owner is deceased, the surviving property owner must file a certified copy of the death certificate of the deceased property owner and an affidavit of survivorship with the county recorder or registrar to complete the formal proceedings.
Furthermore, if you have more than one person as part of the account holder, this cannot be covered in the will because if one of the joint account holders dies, the other joint account holders own the money in the shared bank account.
Another one that cannot be covered in a will is a payable-on-death account. This account is when you assign someone else to receive the funds in your account after your death. Remember that the beneficiary, or person receiving this money upon your death, has no right to these funds until your death.
Lastly, a life insurance policy cannot be covered in a will. Your life insurance policy can indicate a specific person, known as a “beneficiary,” who will receive your insurance proceeds when you pass away. If you need more information on any of these accounts that are not permitted in a will, you can research local state laws through LegalMatch.com. There are policy reasons behind not authorizing these types of funds in your will.
How Is the Will Signed?
According to the American Bar Association, wills must be signed in the presence of witnesses, and certain formalities must be adhered to for the will to be validated. Many jurisdictions require some form of notarization to make the will a legally binding document.
Challenging the will later in the process can be more costly and burdensome. Therefore, following the instructions for properly executing the will can prevent future problems. Creating a will that meets the standards in the beginning process is highly recommended. A later amendment to a will is referred to as a codicil and must be signed with the same formalities.
As stated above, a change in the will later on can complicate matters. If there are issues with the alterations of the provisions, then it can become difficult for the parties. Some jurisdictions allow changes from time to time for tangible items such as furniture, jewelry, and cars without completing the formalities.
The main purpose of the will is consistency in how you communicate in terms of how you want your property to be distributed among your closest family members and friends. If there are additional changes once the will has been probated, it can create potential confusion regarding the terms of the will.
What Is the Probate Process?
The probate process is the legal procedure that deals with settling your estate in court after you are deceased. During this process, the court takes an inventory of your property, pays your debts, and distributes the remainder of your property among your heirs once things are settled. Usually, you assign a representative to manage this probate process for your will. But if you do not have a representative, the court appoints one.
Generally, the process is initiated when an application is filed with the probate court. It commences once all your debt and taxes are paid. Also, once your assets are distributed, if there is disagreement regarding your will, a probate judge will oversee the differences.
What Is Intestacy?
If you do not have a valid will, local intestacy laws apply. Meaning the law of intestacy provides the rules for dividing the property belonging to people who pass away without a valid will. You can look through the local state intestacy laws on LegalMatch.com to determine how your jurisdiction works.
These laws give priority to certain family relationships over others. If you do not want your estate to be dictated by these regulations, then it is recommended to formulate a valid document that meets your jurisdiction’s standards. When a person dies without a will, the property may be divided between the surviving spouse and children (or spouse and parents if there are no children), depending on the value and type of property.
If neither of these relatives exists, then a general order of family priority stems from the intestacy laws. The priority is parents, children, siblings, grandchildren, grandparents, aunts, and uncles.
When Do I Need to Contact a Lawyer?
Although wills are one of the most valuable legal documents, there are some items that they do not cover. Above is a summary of the items not included in the will. Therefore, understanding your future goals and implementing them through your will is key. If you are facing difficulties navigating when formulating a will, you can contact your local will lawyer to assist you.