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.

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.

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.

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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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A Basic Last Will & Testament


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Do Wills Have to Be Handwritten?

Speak with attorneys across the country, and you will likely hear the same advice: most people over the age of 18 should have a will. Without one, state statutes of descent and distribution step in to govern the allocation of assets to survivors. Handwritten wills, also known as holographic wills, are legal and binding in many states. However, each state defines what is acceptable within its boundaries.

Statutory Will V. Living Will

A will is a declaration of how you want your assets distributed following your death. A statutory will is a simple type of will legally recognized by only a handful of states. A living will provides directions for carrying out your wishes regarding your health care if you become incapacitated and cannot make decisions for yourself. A regular will and a living will can work together as part of an overall estate plan.

How to Contest a Legal Will

Just because an executor files a will in probate court does not make the will valid, and a trial ensues if challengers file objections to the purported legal will. While probate rules vary among jurisdictions, common grounds for will contests include fraud, or when someone tricked the testator into making or changing will provisions, for example; undue influence, or when someone pressured a vulnerable testator into making or changing will provisions; and improper execution, or when the will was not signed in conformity with state law.

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