6.3 Wills

Wills

A will (last will and testament) is a legal instrument for the voluntary transfer of real and personal property after the owner’s death. It describes how the testator (maker of the will) wants property distributed. Beneficiaries are called heirs or devisees, and the property transferred is the devise. A will takes effect only after death and can be changed at any time during the testator’s life.

The testator often names an executor (personal representative) to oversee settlement of the estate. If minors are involved, a guardian may be named.

Types of Will:

• Witnessed: In writing and witnessed by two people.
• Holographic: In the testator’s handwriting, dated and signed.
• Approved: On pre-printed forms meeting state law.
• Nuncupative: Made orally and written down by a witness; usually not valid for real property.

Validity: State law generally requires the testator to be of legal age and mentally competent, indicate the will is the “last will and testament,” sign the will, have it witnessed and signed by witnesses, and complete it voluntarily without duress.

Probate: The court process of settling a decedent’s estate, whether with a will (testate) or without (intestate). Probate validates the will, settles debts, and distributes the estate. If there is no executor, the court appoints an administrator.

• Testate (with will): Creditors and legal life estate claims are satisfied first, then heirs receive the remainder.
• Intestate (no will, with heirs): Estate passes to heirs according to state laws of descent and distribution.
• Intestate (no heirs): Estate escheats (reverts) to the state or county after debts are settled.

Check-In Questions

• When does a will take effect?
  When it is signed
  When the testator dies
  When it is notarized
  When the executor is named
  Show Answer

  Correct Answer: When the testator dies
  A will only takes effect after the testator’s death.
• What happens if someone dies intestate and has no heirs?
  The estate is divided among friends
  The estate escheats (reverts) to the state or county
  The estate goes to the executor
  The estate is destroyed
  Show Answer

  Correct Answer: The estate escheats (reverts) to the state or county
  If there are no heirs, the property goes to the state or county after debts are paid.