The Longevity of a Will & Testament

By Heather Frances J.D.

The testator of a will gives directions regarding the people he will leave behind. Wills typically include instructions about who should receive property from the decedent’s estate; the decedent can even use the will to set up a trust for his beneficiaries. Often, wills include nominations for who will manage your estate and assume guardianship of your children. Wills do not expire or go stale, but some terms may become out-of-date as circumstances change or as affected by the operation of state law.

The testator of a will gives directions regarding the people he will leave behind. Wills typically include instructions about who should receive property from the decedent’s estate; the decedent can even use the will to set up a trust for his beneficiaries. Often, wills include nominations for who will manage your estate and assume guardianship of your children. Wills do not expire or go stale, but some terms may become out-of-date as circumstances change or as affected by the operation of state law.

Will Creation

Laws setting out the requirements to create a valid will vary some from state to state, but generally, the person making a will, the testator, must be at least 18 years old and have the mental capacity to understand what he is doing and the intent to convey his property after death. Wills must be in writing unless your state allows oral wills, and most states require wills to be signed by the testator and witnessed by at least two people. If your will conforms to your state’s formalities, it is generally valid no matter how long ago it was drafted.

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Will Revocation

A testator can revoke his will by creating a new one with terms that are inconsistent with the old will or that expressly states it is intended to revoke the old will. A testator can also revoke his will by physically destroying it by burning, tearing or obliterating the document. It is also possible to revoke or change the terms of a will by drafting a revocation or codicil document in which the testator states he is revoking or changing the old will, but these documents must comply with the same formalities as the original will.

Affect of Marriage and Divorce

Although state laws vary, your divorce can impact your will’s provisions regarding your ex-spouse by rendering the terms beneficial to her void by law -- the law assumes you would not intentionally leave part of your estate to your ex-spouse. For example, if you created a will while you were married that left everything to your spouse, she likely won't inherit anything from you after your divorce. If you wish to leave part of your estate to your ex-spouse after your divorce, you legally may do so, but you must draft a new will to make this intent clear. Remarriage does not automatically revoke a prior will, but if you don’t change your will to include your new spouse, state law may allow her to take an “elective share” of your estate when you die. An elective share is a percentage of your estate to which your spouse is entitled by law, no matter what your will says.

Affect of Children

Like marriage, the birth of a child will not cause your will to expire, but it can affect the terms of the will. If your will does not expressly disinherit a child, state law typically gives to that child an automatic right to inheritance. The child is called a pretermitted heir. The law assumes the testator unintentionally omitted the child from his will if the child simply is not mentioned or if the child was born after the will was created. In such a case, the law provides a share for that child as if the testator had died without a will.

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Divorce & Will Law in MD

References

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How Does Divorce Affect a Joint Will?

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Arizona Wills & Testaments

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