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 What Is a Will?

A will is a document used in estate planning that allows a person, also known as a “testator,” to designate the way in which their property is to be distributed upon their death. The property that may be disposed of in a will could include both real or personal property. 

Generally speaking, in most states, a will must have each of the following in order to be valid and legally enforceable:

  1. Be in writing;
  2. Be signed by the testator. Although not typically a requirement, it is advised that a will should also be dated. Doing so helps to reduce confusion on which is the correct will if there are multiple wills. If the testator is unable to sign, such as if they are unable to use their hands, they are allowed to make a mark. The witnesses who are also signing the will can attest to the fact that the testator did sign it;
  3. Be witnessed by at least two or more competent witnesses. Additionally, the witnesses generally may not be interested. What this means is that they cannot be named in the will or otherwise have a stake in the will; and
  4. The testator must possess “testamentary capacity.” Testamentary capacity is typically met if the testator is above the age of eighteen, is in the military, or is legally married, and knows: 

    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 may vary according to 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.

What Does “Will Distribution” Refer To?

The term will distribution refers to the manner in which property is transferred to other people through a valid will document. Will distributions are usually made in the following order:

  • Surviving spouse;
  • Children;
  • Immediate relatives;
  • Distant relatives; and
  • Close friends. 

Recipients of will distributions are referred to as beneficiaries. Any person can be named as a beneficiary in a will, even if they are not related to the will’s testator. Some organizations can be mentioned in a will. An example of this would be when a person distributes some of their estate to a charitable non-profit organization.

In the actual will document, the testator should clearly identify the property to be distributed, as well as the person that will be receiving it. In some cases, the testator may make distributions to categories of people, such as “my children” or “my siblings”. This is acceptable, so long as it does not lead to confusion or difficulties with the will distribution. Generally speaking, it’s better to name people specifically in the will.

Will distributions are distinguished from other forms of property distributions, such as probate distribution or through inter vivos gifts. Most will contest lawsuits stem from will distribution. Will contests generally involve the recipients, or beneficiaries, disputing over various terms of the will. To contest a will means to challenge the authority or validity of the will, as well as the provisions contained within the document.

Contesting a will often leads to a legal battle. Some of the most common examples of will contests include:

  • Disputes concerning which family member is entitled to what specific property;
  • Disputes regarding the amount of money that is to be distributed to a specific person;
  • Conflicts over specific items, such as heirlooms;
  • Conflicts as to whether a person is actually entitled to receive an inheritance; and
  • Various other disputes, usually regarding the testator’s intentions.

A person will generally contest a will when they feel they are being cheated out of what the testator intended for them to receive, such as their rightful inheritance. As such, that person will believe that the distribution is unfair or otherwise not in accordance with the decedent’s actual wishes and intentions.

What Is a Distribution Deed? What Can Be Distributed in a Deed?

Part of estate planning is appointing an executor or administrator to be in charge of the will distribution after the testator’s death. A distribution deed is a type of legal document used for transferring property when the recipient of that property cannot be determined from the will itself. In cases such as these, the executor or administrator is entrusted with the task of handling that particular property.

As such, a distribution deed will contain specific information such as:

  • Death records of the property owner;
  • Identification of the property; and
  • Reassignment of the property to the most appropriate beneficiary.

The contents in a will can include:

  • Real estate property, such as a home, condo, or a tract of land;
  • Personal property, including household items, furniture, clothing and jewelry, musical instruments, appliances, and other tangible items;
  • Bank account funds;
  • Some specific types of securities; and
  • In some cases, various types of employment-related benefits, such as retirement payments.

A testator cannot bequeath, meaning distribute or transfer, property that does not actually belong to them. Additionally, distributions cannot be made if the subject matter is illegal, or if the distribution will cause a party to violate the law. Some types of non-tangible property cannot be distributed in a will, especially if the property is subject to a contract clearly stating that it is “non-transferable” to a third party.

What if There Is a Disagreement With the Will Distribution Arrangement?

As previously mentioned, disagreements with the will distribution agreement generally result in a will contest. Will distribution contests can be very difficult to deal with due to the fact that the will’s creator is usually no longer alive when the beneficiaries discover how the distributions are arranged.  As such, the will executor or administrator must handle will contests. This is why it is especially important to choose the right person to act as an estate’s administrator.

Not everyone involved with the testator may contest their will. In fact, only a person who has what is referred to as “standing” may contest a will. A person who has standing to contest a will is someone who is named in the actual will document, and is therefore a beneficiary.

Additionally, someone who would lose their inheritance under the will if the will was deemed to be invalid could have standing to contest the will. States may have their own individual laws regarding standing, as well as wills and estates, so it is important to check with a local attorney before attempting to establish standing and contest a will.

There are several legal arguments or grounds that allow a person to contest a will. Again, these may vary from state to state. Generally speaking, examples these arguments or grounds could include:

  • Mistakes or errors in the will, sometimes proven and clarified by other documents authored by the decedent;
  • Ambiguous or vague language used in the will;
  • Lack of mental capacity, as in the testator was not sound of mind when creating their will; and
  • Fraud or duress, if it is believed that the will was created under fraudulent conditions or the threat of harm.

A no-contest or anti contest clause may be placed in a will. This clause states that any beneficiary who attempts to contest the will terms will automatically forfeit any claim they may have to an inheritance under the will. However, they may be exceptions to this, depending on the specific circumstances that lead a beneficiary to contest the will despite a no-contest clause. 

An example of this would be if the beneficiary believed the testator was under duress when creating their will. Florida and Indiana do not allow for anti contest clauses, while the rest of the U.S. recognizes or allows them, subject to local state limitations and provisions.

Contesting a will generally begins with filing a lawsuit with the probate court. This could involve submitting various documents highlighting your reasons for contesting the will. It is important that you state the exact grounds for contesting the will. An example of this would be that you believe fraud was involved in the will’s creation. It is important to remember that there could be filing deadlines associated with contesting a will.

Do I Need a Lawyer for Help With Will Distribution Laws?

As will distribution laws can vary from state to state, especially in terms of distributions made to spouses and ex-spouses, you may wish to hire an estate lawyer. An experienced and local estate attorney will be able to assist you in drafting a valid will or interpreting an existing will. Alternatively, you may also need to hire an experienced lawyer if you need assistance with any form of will contest or will dispute. An experienced estate attorney will be able to represent you in court as needed.

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