Commomly Asked Questions About Wills

by David Carnes
A poorly prepared will can lead to an expensive legal battle.

A poorly prepared will can lead to an expensive legal battle.

Jupiterimages/Photos.com/Getty Images

A well-prepared last will and testament is critical if you want to control the distribution of your estate after your death because without a valid will, the state government will distribute your assets using a pre-determined formula. State law imposes a number of formal requirements on wills and allows them to be contested on a variety of grounds.

Intestate Succession

An estate is said to be intestate when there is no valid will governing the distribution of its property. An estate can be completely or partially intestate. It is partially intestate if the will does not cover the entire estate such as if the deceased acquired property after making the will and did not account for the property in the will. Property contained in intestate estates is distributed to living relatives, giving priority to the closest relatives first and then more distant relatives. If there are no living relatives, the state government takes title to the property.

Formal Requirements

You don't need a lawyer to execute a valid will, although it is advisable to have one check it over before you sign it. A will must be in writing and in some states, it must be printed rather than handwritten. The testator -- the person making out the will -- must be at least 18 years old and mentally competent. The will must state that it is a will and must dispose of at least some of the testator's property or appoint a guardian for minor children. If the testator is the only living parent of minor children, he must appoint a guardian for the children. The testator must also appoint an executor to administer his estate during the probate process. The testator or his authorized representative must sign the will in the presence of at least two witnesses who are not beneficiaries under the will and the witnesses must sign the will.

Restrictions

Some property cannot be disposed of through a will. Property held in joint tenancy, for example, goes to the other joint tenants when one of them dies. Other types of assets, such as insurance proceeds and pension plans, require the testator to name a beneficiary before death and a will provision that purports to give the property to someone else will be ignored. The testator's spouse at the time of death and his dependent children are entitled to a portion of the testator's estate even if the will provides otherwise.

Contesting a Will

The most common grounds for contesting a will include fraud, undue influence and ambiguity. Fraud occurs when someone deceives the testator in a manner that affects the distribution of his estate under the will. Undue influence occurs when someone directly or indirectly coerces the testator in a manner that affects the distribution of the estate. Ambiguity occurs when the wording of the will is unclear. For example, a statement such as, "One of my cars to Jeff and the other to Tracy" might provide grounds for a will contest if one car is more valuable than the other, or if the testator owned more than two cars.