Last Will & Testament Laws

by Rob Jennings
    People can find laws regarding wills in the statutory and case law of every state.

    People can find laws regarding wills in the statutory and case law of every state.

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    Matters related to wills and estates -- with the exception of taxes -- are governed by the statutory and case law of individual states, and therefore vary somewhat depending on the state. But since state laws on wills originated with English common law, the laws across the states tend to resemble each other on several important points. Furthermore, uniform and model acts have influenced state codes on the topic of wills and estates.

    Restatement of Wills

    The American Law Institute has promulgated the Restatement (Third) of Wills in several volumes. Although restatements of the law are not binding law in and of themselves in any state, they contain a crystallization of what important legal scholars believe to be representative of black letter law. The Restatement (Third) of Wills is influential in that attorneys and judges frequently cite it in support of or in opposition to various points advanced in appellate court cases on topics where existing statutory law is unclear. Drafters of legislation also look the Restatement for guidance in the reformation of their legal codes on the topic of wills.

    Uniform Probate Code

    As of 2010, the Uniform Probate Code has been adopted by some 18 states as binding statutory law. Like the Restatement (Third) of Wills, the Uniform Probate Code represents the modern trend away from formalism in the interpretation of wills and the enforcement of statutory and common law rules regarding will executions. Under this trend, the rectification of errors in wills not discovered until after the testator's death becomes possible. Technical errors in the execution of a will, such as a failure of one of the witnesses to sign every page, used to completely invalidate an otherwise valid will. While this remains true in many jurisdictions, the Uniform Probate Code and other model legislation seeks to mitigate the effect of such technical errors in favor of preserving the testator's original intent.

    Uniform International Wills Act

    The Uniform International Wills Act contains directives regarding the formalities of will execution, and has been codified into the statutory law on wills in many states. Under the Wills Act, the testator must sign the will in the presence of two competent witnesses. Alternatively, the witnesses may hear the testator acknowledge the validity of a previous signature of the testator or one made at the testator's direction. The witnesses must sign the will attesting to its validity. Failure to comply with these formalities in jurisdictions where the Wills Act is in effect can result in the failure of the will and the administration of the estate under the laws of intestate succession.

    Uniform Simultaneous Death Act

    Problems in estate administration can result when two related people, such as a husband and wife, die close together in time. The question of who died first becomes critical in that the second to die inherits the assets of the first. Under the Uniform Simultaneous Death Act, when two people die within 120 hours of each other, they are considered to have predeceased each other. This keeps assets from flowing to just one estate instead of the survivors of both.

    About the Author

    A practicing attorney since 2003, Rob Jennings has written fiction and nonfiction since 2005, with his work appearing in a variety of print and online publications. He earned his Juris Doctor from the University of North Carolina at Chapel Hill.

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