Laws About Wills

By Carrie Ferland

Laws governing the format, contents and execution of wills are defined by each individual state. This lack of uniformity prompted the enactment of the Uniform Probate Code, or UPC. Unfortunately, while the initial purpose of the UPC was for all states to adopt it in full, as of November 2010, it is only formally adopted in 16 states. However, the remaining states and the District of Columbia have defined similar laws, utilizing the UPC as a base standard for determining testator capacity, structure and probating procedures for a valid will.

Uniform Probate Code

The Uniform Probate Code is a uniform act governing the structure, contents and execution of valid wills, as well as rules governing the process of intestate succession. The National Conference of Commissioners on Uniform State Laws first drafted the UPC in 1964 to establish uniformity in probate procedures across the states. The UPC continues to undergo regular revision, the last addendum occurring in 2006.

Uniform Intestacy, Wills, and Donative Transfers Act

The Uniform Intestacy, Wills and Donative Transfers Act is a standalone section -- Article II -- of the Uniform Probate Code. The UIWDT specifically develops a uniform standard “…for making, interpreting and revo[king] wills” by defining, among other things, the minimum capacity requirements for testators, the topics a will should address and how administrators should carry out a testator’s wishes. The UIWDT also includes the Uniform Simultaneous Death Act, which explains how the courts should treat two separate wills belonging to spouses who pass simultaneously and a line of intestate succession for estates that name multiple administrators or beneficiaries who pass simultaneously prior to or during probate.

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State Probate Code

All 50 states and the District of Columbia have developed their own statewide probate code that establishes laws governing wills, probate and intestate succession. Of the states that adopted the Uniform Probate Code, six have enacted additional laws, while nine have enacted a standalone probate code as a supplement. Though specific probate laws can vary considerably between the states, most define very similar guidelines governing testator capacity, will formats, execution, witnesses and the like. Additionally, most states will acknowledge and probate wills devised by testators who lived in another state prior to passing.

Federal Estate Laws

Probate matters are a right of the state and thus -- as of 2010-- there is no federal law that addresses the creation, execution of probating of wills. The only federal law that even mentions private estates is the Estate Tax Code -- under the Internal Revenue Code -- which imposes a federal estate tax upon every estate at the owner’s passing. Though the Uniform Probate Code was intended to be one, there will likely never exist a federal code that requires all states to adopt a nationwide standard for wills, administration or probate.

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Rules for Witnessing a Will


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Forms of Wills

Several forms of will are recognized in the United States, with each individual state having its own rules on what constitutes a valid will, and under what circumstances. While a standard, attorney-prepared will that is typed up and signed before witnesses will usually be valid, other forms of wills have their own rules.

Verifying Authenticity of a Last Will & Testament

The maker of a will, commonly known as the "testator," must draft the will in accordance with the state's probate code for it to be held as valid. Generally, these formalities exist so that a probate court can verify the authenticity of the will. When a will is admitted to probate court, the court examines the will to make sure it was made in compliance with state law.

Who Is Legally the Next of Kin?

Next of kin is a legal term that comes up when someone has died without a will. If an individual dies without leaving a valid will, her estate passes to the relatives described as next of kin in the state's intestacy laws. Most states consider the deceased's surviving spouse and children next of kin for inheritance purposes.

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