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A will is a written or oral declaration declaring who will receive the person’s property upon his/her death. The author of the will is typically referred to as the testator or testatrix. If the testator includes a provision giving away real property in his/her will, it is typically referred to as a devise. On the other hand, if the testator includes a gift of personal property in the will, it is referred to as a bequest. A legacy refers to a provision in a will that disposes of a certain amount of money to a named person. There are three main types of wills: written, holographic, and nuncupative.

The most common way people plan for the handling of their estate after their death is through a will. If a will is well written, it can ease the burden on the survivors by allowing property to be transferred to them quickly, and avoids many tax issues. A will can be a simple one-page document or a complicated volume of documents depending on the size of the estate and the preferences of the testator (the person creating the will). A properly written will describes the estate, dictates who will possess specific property, and if applicable, provides instruction as to the care of minor children, gifts to charity and the formation of trusts. The formal requirements for how a will should be written will vary from state to state. However, in general, the testator must be an adult with sound mind, meaning that the testator must understand the implications of his or her decisions. Wills must also be in writing and the testator must sign the document. If the testator is unable to sign the document, then he or she must direct someone else to sign the document in the presence of a witness, and the signature must be witnessed or notarized. Changes to a will may be made without completely rewriting the will, however, a valid will remains enforceable until it is revoked or it is replaced by a new valid will. At any point, a will can be freely revoked by the testator (the person to whom the will applies to) of the will. In cases in which a new will is written and an original already exists, the law recognizes through, “revocation,” that the new will takes precedence over the original will. A necessary element for this to occur is that there is a term or concept in the two wills that are inconsistent in the respective wills. The will, by requirement, must be written; although not necessarily on paper (the will could be typed on a computer, but not orally recorded). As long as all necessary components of the will are written, then the will is deemed valid. A husband and wife may make separate wills with identical or nearly identical provisions - called a mutual will. These types of wills are also known as mirror wills or reciprocal wills. In these wills, the spouse’s will often time leave property to the other spouse and/or to their children.

If a person’s estate does not include trusts and his or her will does not contain provisions of a complicated manner, then that person’s Will is referred to as a Simple Will. A holographic will is a will that is handwritten by the testator without the presence of any witnesses. Because of the nature of the Will and because of the fact that a Holographic Will bear’s no witness, not every state recognizes the validity of a Holographic Will.

A nuncupative will is a will that is made by oral or spoken declaration. The Uniform Probate Code and many states do not recognize the validity of nuncupative wills, because it is often difficult to prove the testator is truly who the tape declares him/her to be. Another type of will is a statutory will, which is basically a fill-in-the-blank will form that can be filled out without an attorney. These statutory wills include general language and will provisions and give the testator a limited number of choices for the distribution of remaining property. States that have enacted statutory wills include: California, Maine, Michigan, and Wisconsin.

While the purpose of a will is to honor the testator’s wishes at death, there are some legal restrictions that may prevent a testator from fully carrying out his or her wishes. For instance, some state laws prohibit a testator from disinheriting his or her spouse or dependent children. If someone is married, he or she cannot completely disinherit a spouse without the spouse’s consent. Most jurisdictions allow a living spouse to elect to inherit up to one half of the estate, if the spouse is unhappy with the will. A testator may elect to disinherit non-dependent children; however, this preference must be clearly stated in the will in order to avoid any confusion. Further, some property may not be passed on through a will. For example, any property owned in joint tenancy, will automatically go to the surviving joint tenant.

Often, a will appoints a representative, or an executor, to carry out the wishes of the testator upon his or her death. The executor will manage and consolidate the testator’s assets, manage any debt owed by the testator and/or collect any debt that the testator is owed, sell any property that is necessary to pay taxes or other expenses and file any necessary documents for the estate.

If a person dies and no valid will exists, survivors may face a very complicated legal process. No valid will leaves an estate “intestate”, and a probate court must decide how to divide up the property. The court will pay off any debts and death expenses first and then will divide the remaining estate according to legal guidelines. This means that the deceased’s wishes might likely not be carried out and thus most people find it important to create a will rather than leave their estate to be divided by the government.

A probate proceeding determines the validity of the will, and sometimes this can be extremely difficult. Angry family members can contest the will in probate court, challenging the mental capacity of the testator, or using other claims such as undue influence, insane delusion, duress, fraud, and mistake. If the will is ruled invalid, then inheritance will follow the rules of intestacy under the state where the testator died.

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