A Guide to Wills

By Cindy Hill

A last will and testament is usually a formal legal document setting out the drafter's directions for how his property should be distributed after death. A last will may also sometimes be a handwritten or even an oral statement. A living will is another type of legal document which describes the drafter's preferences for medical treatment decisions in the event he is unable to communicate his wishes.

A last will and testament is usually a formal legal document setting out the drafter's directions for how his property should be distributed after death. A last will may also sometimes be a handwritten or even an oral statement. A living will is another type of legal document which describes the drafter's preferences for medical treatment decisions in the event he is unable to communicate his wishes.

Simple Wills

A simple will is a formal written document which follows all the legal requirements of the state in which it was drafted, including proper witnesses and signatures. The elements of a simple will include introductory and declaratory paragraphs which identify the drafter and her intention to make this a last will and testament. A bequest clause is the section which states how property should be distributed, and a residuary clause disposes of any leftover assets. A will also names an executor -- the person responsible for seeing the will through the probate process -- and names a guardian for the testator's minor children, if any. A simple will also includes a provision for paying off debts of the estate, and then an attestation clause signed by the witnesses.

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Complex Wills

A will pertaining to a complex estate includes all the provisions found in a simple will, but may also include the establishment of trusts or directions for the estate to continue operating a business or collecting debts owed to the testator. A more detailed, complex will may also be necessary where a prenuptial agreement or divorce decree impact the terms of a will, or where the estate is large enough to warrant significant concerns regarding estate taxes.

Mutual Wills

Mutual or reciprocal wills are a pair of mirror-image wills, usually drawn up by spouses who wish to leave all their assets to one another, and then to their children. Mutual wills can be simple or complex, depending on the financial and family situation of the testators. Remember to draft a new will after divorce or remarriage, as the reasoning behind the original mutual will may be nullified in these cases.

Handwritten and Oral Wills

A handwritten, or holographic, will must follow all the same requirements as a typed will in order to be legal, including being signed by the appropriate number of witnesses and possibly a notary in accordance with state law at the location where the will is drafted. Each state has different laws regarding the legality of holographic wills. An oral, or nuncupative, will, is a statement typically made on a person's deathbed indicating that an item of personal property should go to a particular individual. An oral will does not meet the legal requirements that a will be in writing and properly witnessed, but probate courts in some states may at least take a nuncupative declaration into consideration in the disposition of an estate, especially if there were adult witnesses to the declaration and if no one challenges the oral bequest.

Living Wills

A living will is a formal written legal document which sets out your intentions regarding life-prolonging medical treatment when you are no longer able to communicate. A living will differs from a durable health care power of attorney, in that a living will sets out your own directives, while a health care power of attorney appoints someone else to make your health care decisions for you if you are unable to communicate. Each state has different laws regarding the legal effect and documentary requirements of a living will or durable health care power of attorney, so be sure to determine the laws of your state before assuming that a generic living will form will be honored by your local medical practitioners.

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References

Related articles

Do I Have to File a Will Through Probate?

Probate is a court-supervised administration of a will. Although not every estate passes by will, every will passes through probate in order to become effective. The executor -- either named in the will or appointed by the court -- steers the will into and through the probate process, collecting assets, notifying heirs, paying debts and ultimately distributing property.

What Does a Last Will & Testament Look Like?

A last will and testament is almost always in writing. Since the person making the will can choose what kind of paper to use and whether to handwrite or type, a last will and testament may look like any other document. However, a will must contain certain elements to be legal in most states. Looking for these in a document can help you determine if the document is someone's last will and testament.

What Constitutes Substantial Compliance in Virginia Wills?

While it's easier for everyone if a will strictly complies with the law, Virginia courts allow a bit of wiggle room to ensure the decedent's wishes are carried out. If a will is found to be invalid, the decedent's assets will not pass according to the terms of his will, but instead under the intestacy laws set forth in Virginia statutes.

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