Facts About Wills

By David Carnes

Your last will and testament is the only way that you will be able to control the distribution of your assets after you die. If you die without leaving a will or if your will is defective in some way and cannot be enforced, a court will distribute your property according to state intestacy laws.


The person who creates a will to distribute his assets is known as the testator. A testator must be at least 18 years old and of sound mind. The will must be in writing, and must clearly show the testator's intent to distribute his assets after death. The testator must sign the will if he is able to; otherwise it must be signed by someone authorized by the testator. In most states, two or three witnesses must be present when it is signed, and the witnesses must sign the will in each other's presence. Notarizing all signatures will help prevent a challenge to the will after the testator's death.


Some types of property cannot be distributed under a will. Any property held in joint tenancy will automatically revert to the surviving joint tenant upon the testator's death. Intangible property, such as insurance policies and pension plans, must pass to the beneficiary if a beneficiary is named. Absent a prenuptial agreement, the testator's spouse is entitled to a portion of the estate even if the will provides otherwise. The testator's minor children are also entitled to a portion. The exact proportions vary according to state law.

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The executor is the legal representative of the estate after the death of the testator. He will pay the estate's bills, collect money from the estate's creditors and file legal documents on behalf of the estate. The testator should name an executor in his will, as well as an alternate in case the named executor cannot or will not perform his duties. He should also seek the potential executor's consent to the nomination. The executor is often a friend or relative of the testator, but need not be.


If the testator is the parent of minor children or other dependent children and the other parent is dead or has lost parental rights, he should appoint a guardian for the children. If he does not, the court will appoint a guardian. Although the court reserves the right to reject the testator's choice of guardian, the testator's choice is usually highly persuasive to courts. As is the case with executors, the testator should appoint an alternate guardian and seek consent from both nominees.

"No Contest" Clauses

In some states, the testator may insert a "no contest" clause into his will that prevents heirs from contesting the amount that they receive under the will. If the heir contests the will -- for example by questioning the testator's mental capacity at the time the will was executed -- and the court does not uphold the heir's challenge, the heir will completely forfeit any amount she would have been entitled to under the will if she hadn't challenged it.

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What Constitutes a Legal Will?


Related articles

Contesting a Will as a Beneficiary

Will contests take place in probate court: One of the functions of probate court is to hear any disputes pertaining to the execution of a will. A beneficiary who seeks to contest a will must have verifiable grounds upon which to do so. If a probate court deems the evidence sufficient, it may declare the entire will invalid or merely strike certain provisions.

Legal Grounds for Contesting a Will

You cannot contest a will merely because you believe you should have received more -- you must establish legal grounds. A person with standing -- a beneficiary or somebody who could reasonably expect to be named as a beneficiary -- can file a petition with the court during probate. If the court determines that there's sufficient legal grounds, it can invalidate the entire will or particular provisions of the will.

What Happens After an Estate Has Been Probated?

Whether a person dies with our without a will, in most cases, his estate must go through the probate process. Although state probate laws vary, the probate process is fairly uniform throughout the United States. It is generally a court-supervised process for gathering the assets of the deceased, paying his creditors and taxes and then distributing his remaining assets to his beneficiaries if there is a will -- or to his heirs, according to the state's laws of intestate succession, if there is no will. During the probate process, real property owned by the deceased is retitled to his beneficiaries or heirs. To open probate and begin the process, an interested party, typically a beneficiary or heir, must file a petition with the state court that handles probate.

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