About Wills

by David Carnes

If you fail to prepare a valid will before you die, the state government will distribute your assets in accordance with state law, perhaps inconsistently with your wishes. Because of the possibility of fraud, state law imposes certain requirements that must be met in order for a will to be considered valid.

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A will must be in writing to be enforceable, and must clearly indicate that it is a will. The person who signs the will to distribute his property, known as the testator, must be at least 18 years old and must be able to understand the full meaning and significance of the document. The testator must sign the document unless he is unable to do so, in which case an authorized representative must sign it. The signature of the testator or representative must be witnessed by two or three witnesses, who must sign the will in each other's presence.


State law will not enforce every provision that a testator might put in a will. In some states, the spouse and minor children must receive a minimum share. Nevertheless, a valid pre-nuptial agreement will be enforced. Some types of property cannot be transferred by will. Property held in joint tenancy will go to the surviving joint tenant. Pensions, bank accounts and insurance policies that name a beneficiary will go to the beneficiary.


An executor is a person named by the testator to administer his estate after he dies. Most people choose a relative or a close friend, but this is not necessary -- sometimes an attorney is chosen, for example. The executor collects all debts owed to the testator's estate, sells assets to pay the testator's debts and files necessary documents with the judicial and tax authorities. Testators normally name an alternate executor in case the named executor is unable or unwilling to undertake his duties. The testator should seek the consent of both nominees before appointing them.


If the testator is the last surviving parent or guardian of minor or dependent children, she should name a guardian for her children so that a guardian will not be appointed by a judge. As in the case of executors, the testator should name an alternate and should seek the consent of both parties to her nomination. The testator may want to dedicate a portion of her estate to providing child support payments to the guardian.


An estate is said to be intestate if its owner died without leaving a will, or left a will that proves to be unenforceable for some reason. Intestacy results in a time-consuming and expensive legal process. The estate will be divided between surviving relatives according to a complex legal formula. If no relatives are found, the estate will be confiscated by the state government. Tax rates are considerably higher on intestate estates than on estates that pass by will.