Definition of a Legal Will

By Teo Spengler

A will -- also called a last will and testament -- is a document describing what you want to happen to your estate when you die. In a will, you name your heirs, a guardian for your minor children and also an executor for your will -- the person to collect and distribute your assets. However, a will is only enforceable if it complies with the probate laws of your state.

A will -- also called a last will and testament -- is a document describing what you want to happen to your estate when you die. In a will, you name your heirs, a guardian for your minor children and also an executor for your will -- the person to collect and distribute your assets. However, a will is only enforceable if it complies with the probate laws of your state.

Competent Testator

You must be competent and of legal age to make a valid will. If you are underage -- under 18 in most states -- the court distributes your property according to your state's intestate laws regardless of whether you write a will. The courts consider you competent -- also termed "of sound mind" or "having testamentary capacity" -- if you understand that you are making a will that will distribute your property at your death. Neither eccentricities nor drug or alcohol use render you incompetent as long as you have testamentary capacity at the time you sign the will.

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Proper Execution

Execution of a will means the will-signing procedure required by your state. In most states, probate laws regulate the execution of your will much more than the substance. You can likely leave your entire estate to your pet turtle without running afoul of the law, but if you neglect the witnessing requirements, your will is invalid. All states require that you sign your will before at least two of-age witnesses, and many require impartial witnesses -- people not named as heirs under your will. States impose different execution requirements for other types of wills, such as international wills or holographic wills.

Testamentary Intent

In order for your will to be valid, it must express your intentions for the distribution of your property, not somebody else's intentions. When heirs challenge a will claiming undue influence, fraud or mistake, they are essentially claiming that the will does not represent your free choices. Undue influence means that someone in a confidential position improperly pressured you into making or omitting devises. Fraud means that someone tricked you, and mistake means that you were ignorant of critical facts when you wrote the will, not knowing, for example, of the existence of a new grandchild.

Revocation

You can freely change or revoke a last will and testament during your lifetime, and the courts will not enforce a revoked will. A new provision (termed "codicil") added to a will alters or eliminates a bequest, and a new will supersedes the old. It is also effective revocation to state that you revoke the will, then to take some step toward destroying the will, like tearing it up or burning it.

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How Are Wills Broken Down?

References

Related articles

Is an Unwitnessed Will Legal in Oklahoma?

Though Oklahoma generally requires two witnesses for a valid will, an unwitnessed will can be legal in Oklahoma under certain circumstances. For example, an individual that has the capacity to create an enforceable will under Oklahoma law can create a handwritten will that is exempted from the normal attestation requirements, and in some situations an oral will can also be valid. Oklahoma’s laws on the validity of wills are codified in Title 84 of the Oklahoma statutes.

Pennsylvania's Statute of Wills

Pennsylvania's statute governing wills is called the Probate Code. Like all states, Pennsylvania has its own laws that cover what makes a will valid and how the instructions in a will should be carried out after the person who has made it dies. Although you do not need an attorney to make a valid will in Pennsylvania, the Pennsylvania Bar Association recommends consulting a lawyer to be sure your will is valid under Pennsylvania law.

How to Add an Addendum to a Will

Adding an addendum to a will requires a document called a codicil. If drafted appropriately, the codicil will be considered a part of the will and read alongside the original document when the estate is probated. Probate codes, which define the drafting requirements for wills and codicils, are written by each state. However, the Uniform Probate Code has significantly influenced all of the state probate codes. Therefore, the UPC is a good basis for a general discussion on how to amend a will. You should check the provisions specific to your state to ensure that your codicil is properly drafted.

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