State Laws on Last Wills and Trusts

By Brian Richards

The laws on last wills and trusts are similar across states, but each state has slightly different requirements. The laws are codified in each state’s probate code. Though most states will honor a will or trust that complies with the laws of the state in which it was made, it is generally a good idea to comply with the most stringent states’ standards to better ensure that your will or trust will be valid when it is needed.

Intestacy

Intestacy laws are laws that govern what happens to an individual’s property when he dies without a will or trust in place. Individuals in this situation are referred to as having died intestate. Each state maintains it own system to decide how property will be distributed. For instance, some states will pass the entirety of the property to the deceased’s next of kin, which is usually a spouse, child or parent. Other states may give shares to each of these family members, such as 50 percent to a spouse and the remaining 50 percent split between the children or children’s heirs. Though a will or trust will usually overcome these intestacy distributions, there are certain exceptions.

Elective Shares

Even if you have created a will or trust before your death, the probate court may ignore certain distributions if they do not comply with state laws. For instance, many states give the spouse of the deceased the opportunity to claim what is called an elective share. In lieu of her inheritance in a will, a surviving spouse may choose the state’s elective share, which varies from state to state. Often, this will allow the spouse to claim as much as 50 percent of the estate regardless of the size of her inheritance in the will or trust. Many states also give children of the deceased their own elective share.

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Witnesses

Wills and trusts are both legal documents, and so the probate court wishes to ensure the validity of the document before honoring it. One way that most states validate a will is through witnesses. When a will is signed, most states require that at least two witnesses testify that the deceased signed the will in their presence. This helps to authenticate the will after the individual has died. Some states prevent witnesses from being named as heirs in order to avoid a conflict of interest.

Challenges

Most states have guidelines to help prevent unlawful wills and trusts. There are three main causes for finding a will or trust unlawful: fraud, undue influence and incapacity. Fraud means that the individual was made to sign the will when he was not aware what he was doing, such as when a defrauder asks the individual to sign a document and then later fills in provisions to make a will. Undue influence occurs when an individual close to the deceased successfully induces the deceased to sign a will or trust that he otherwise would not have agreed to, such as when a caregiver pressures the person to leave his entire estate to the caregiver. Incapacity occurs whenever the deceased was not of lawful age or not of sound mind and body at the time the will was drafted. The deceased must fully understand the nature of the document they are creating in order for it to be legal.

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