Wills and Estate Documents

A will is a legal document that directs the distribution of a person's probate assets at death. Understanding wills is fundamental to estate planning because they serve as the foundation for expressing a testator's wishes about asset distribution, guardian appointments, and estate administration.

Purpose of a Will

A will serves several critical functions in estate planning:

• Directs probate asset distribution: Specifies who receives assets that pass through probate
• Appoints an executor/personal representative: Names the person responsible for settling the estate
• Names guardians for minor children: Designates who will care for children if both parents die
• Creates testamentary trusts: Can establish trusts that come into existence at death
• Specifies funeral and burial wishes: Documents final disposition preferences

Important: A will only controls probate assets. It does NOT control assets that pass by:

• Beneficiary designation (life insurance, retirement accounts, POD/TOD accounts)
• Joint ownership with right of survivorship
• Trust arrangements

Requirements for a Valid Will

While requirements vary by state, most jurisdictions require the following elements for a valid will:

Notarization: While not required for validity in most states, a self-proving affidavit (notarized) can simplify probate by eliminating the need to locate witnesses.

Types of Wills

Attested (Statutory/Formal) Will

The most common type of will, which meets all formal execution requirements:

• Typed or printed document
• Signed by the testator
• Witnessed by two disinterested witnesses
• May include a self-proving affidavit

Holographic Will

A handwritten will that may be valid without witnesses in approximately 25-30 states:

• Must be entirely or substantially in the testator's handwriting
• Must be signed by the testator
• Must clearly express testamentary intent
• Risks: May be challenged due to lack of witnesses; unclear provisions common

Nuncupative Will (Oral Will)

An oral will spoken aloud, valid only in very limited circumstances:

• Generally limited to military personnel on active duty or sailors at sea
• Some states allow for personal property only during "imminent peril of death"
• Requires multiple witnesses who heard the declaration
• Rarely valid in modern estate planning; most states do not recognize

Pour-Over Will

A will that directs probate assets to "pour over" into an existing revocable living trust:

• Works in conjunction with a revocable trust
• Ensures assets not transferred to the trust during lifetime still reach the trust
• The trust document, not the will, controls ultimate distribution
• Assets still go through probate but then transfer to the trust

Comparison of Will Types

Intestacy Laws: When There Is No Valid Will

When a person dies intestate (without a valid will), state intestacy laws determine who inherits. These laws create a default distribution scheme based on family relationships:

Typical Intestate Distribution Priority:

1. Surviving Spouse: Usually receives a significant portion or all of the estate
2. Children/Descendants: Share with spouse or inherit everything if no spouse
3. Parents: Inherit if no spouse or descendants
4. Siblings: Inherit if no spouse, descendants, or parents
5. More Distant Relatives: Grandparents, aunts, uncles, cousins
6. Escheat to State: If no heirs can be located

Common Intestate Distribution Scenarios:

Key Intestacy Concerns:

• Unmarried partners receive nothing under intestacy laws
• Stepchildren typically receive nothing unless legally adopted
• Favorite charities receive nothing
• Distribution may not match decedent's wishes

Important Will Provisions

Survivorship Clause

Requires a beneficiary to survive the testator by a specified period (commonly 30-60 days) to inherit. This prevents:

• Double probate of the same assets
• Assets passing to the beneficiary's heirs rather than alternate beneficiaries

Example: "I leave my estate to my spouse, provided she survives me by at least 30 days; otherwise to my children in equal shares."

Disclaimer Clause

Allows beneficiaries to refuse an inheritance, with instructions for where disclaimed assets will go. This provides:

• Post-mortem planning flexibility
• Tax planning opportunities
• Medicaid planning options

Residuary Clause

Disposes of all remaining assets not specifically bequeathed. This "catch-all" provision ensures:

• No assets pass by intestacy
• Newly acquired assets are covered
• Specific bequests that lapse (beneficiary predeceases) have a destination

No-Contest (In Terrorem) Clause

Disinherits any beneficiary who challenges the will. Effectiveness varies by state.

Codicils and Will Amendments

A codicil is a formal amendment to an existing will that:

• Must meet the same execution requirements as the original will
• Can add, modify, or revoke specific provisions
• Does not replace the entire will
• Should reference the original will by date

Modern Practice: Due to word processing, most estate planners now recommend executing an entirely new will rather than using codicils, which can create confusion and are easier to misplace.

Key Exam Concepts

1. Wills only control probate assets - Beneficiary designations and joint ownership override will provisions
2. Testamentary capacity is presumed - Challengers must prove lack of capacity
3. Holographic wills are risky - Not recognized in all states; often challenged
4. Intestacy rarely matches wishes - Unmarried partners and stepchildren are excluded
5. Pour-over wills require a trust - They work in conjunction with revocable trusts
6. Survivorship clauses prevent double probate - Common in spousal bequests