A will is an estate planning document allowing a person, also known as a “testator,” to designate the way in which their property will 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 order for a will to be valid, the will must have each of the following:
- Be in writing;
- Be signed by the testator. Although not always a requirement, a will should also be dated, as this helps reduce confusion regarding the correct will if there are multiple wills. If the testator is not able to sign, such as if they are unable to use their hands, they can make a mark (such as an X), and the witnesses signing can attest that the testator did sign it;
- Be witnessed by at least two or more competent witnesses. Additionally, the witnesses cannot generally be interested; meaning they cannot be named in the will or otherwise have a stake in the will; and
- The testator must have testamentary capacity, which is generally met if the testator is above the age of 18, in the military, or is legally married, and knows:
- That they are creating a will;
- The effect of the will is to distribute their property upon their death;
- They understand the property in which they are distributing; and
- They understand who is receiving the property.
It is important to note that these requirements will vary depending on the state where the testator resides and what type of will is being created. An example of this would be how if the will is a holographic will, it generally does not need to be witnessed so long as the will is both written and signed by the testator.
If you die before you create a will, you will have died intestate. In short, intestate means dying without first making a will to distribute your property. Every state has different rules regarding what happens to your property if you die intestate. However, a common intestacy distribution scheme determines that your property will be divided equally amongst your surviving family at the first generational level and then distributed in equal shares.
What this means is that your spouse or children may not receive your property according to your wishes, as the law of your state will determine who receives what portion of your property.
Additionally, if you wish for your siblings or parents to receive certain property upon your death, it is better to draft a will before you die to designate who receives what property. However, it is important to note that some property cannot be distributed in a will.
What Does It Mean To Contest A Will?
Because a will is a legal document, it is an important tool that carries much authority regarding a person’s property, money, and other assets. As such, there are frequent conflicts over what a will states. Such conflicts are referred to as will contests and generally involve the beneficiaries disputing over various terms of the will. To contest a will means challenging the authority or validity of the will and its provisions.
Contesting a will generally result in a legal battle. Some of the most common examples of will contests include:
- Disputes regarding which family member is entitled to what specific property;
- Disputes associated with the amount of money that is to be distributed to a specific person;
- Conflicts regarding specific items, such as heirlooms; and
- Conflicts as to whether a person is actually entitled to receive an inheritance.
Generally speaking, a person will contest a will when they feel they are being cheated out of what the testator intended to receive, such as their rightful inheritance. Because of this, that person will believe that the distribution is unfair or not following the decedent’s actual wishes and intentions.
What Is A Will Settlement?
In some cases, even when a will clearly states how the property is to be managed and distributed, there are disputes over the will terms or provisions. A will settlement is a legal process by which will contests or disputes are resolved.
Will disputes involve disagreements regarding how certain property or money is distributed after the testator dies. As such, a will settlement seeks to resolve these issues, ideally according to the terms set out in the will itself.
Each will is different as they are based on the needs of the testator, and state laws governing wills also differ. As such, will settlements are generally addressed by the court on an individual, case-by-case basis. If the testator did not have a will in place upon their death, their estate property will be addressed and distributed through the state probate process, as previously mentioned.
Will disputes involve a wide range of different conflicts and issues, which may include:
- Disputes Over Beneficiaries: Some beneficiaries, generally family members, may disagree regarding who should receive the property. An example of this would be how they might claim that a certain person is not actually listed as a beneficiary in the will document;
- Disputes Over Property Distribution: The most common form of will dispute would be when the property distribution is contested. This can include disputes regarding the amounts distributed, as well as disputes over which persons receive which property. Another example of this would be disputes over the value of the property; and/or
- Disputes Over the Executor: The will executor is the person that the will document names in order to manage the estate after the testator’s death. The executor will be tasked with various responsibilities, such as paying off estate debt and managing the various property distributions. Estate beneficiaries may have disputes regarding the executor and may seek a removal of the executor.
These types of disputes may require the intervention of the court for resolution.
How Is A Will Settlement Accomplished?
Will settlement generally begins with a filing through the local court system. This could involve a probate court, which generally handles will contests or disputes. The judge will review relevant state laws to determine how the property should be distributed and decide whether any specific parties have beneficiary rights.
Will settlement may also occur privately between the estate administrator and the parties with the specific complaint. Generally, this is more time-efficient and less costly than going through the state court system.
However, private negotiations and settlements will still generally require the assistance of a lawyer to provide guidance and validity for the end result. Additionally, the parties involved may still need to interact very frequently with a probate judge for intervention or assistance.
An example would be if one party feels they should have inherited a car from the testator instead of a different person. The administrator and the person would need to consult the will document and state laws to determine which rights the person has concerning the property.
Do I Need An Attorney For Will Settlement?
If you are involved in a will settlement, you should consult with an experienced local wills contest lawyer.
An attorney will be best suited to help you understand your legal rights and options according to your state’s specific laws regarding the matter. Finally, an attorney can also represent you in court, as needed.