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Are There Different Types of Wills?

There are three main types of wills: written, holographic, and nuncupative. A holographic will is a will that is handwritten by the testator without the presence of any witnesses. Holographic wills are not validly recognized in many states, but they are still permitted in over one-half of the states. 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.

How Does A Will Become Legally Recognized?

There are several requirements for a will to be legally recognized, such as the requisite legal capacity, testamentary capacity, and adherence to the state’s formalities for making a will. In order to have the required legal capacity to make a will, a person generally has to be at least 18 years old or considered the age of majority. While the legal capacity requirement is easily determined, the testamentary capacity of a person who made a will is often disputed. The elements necessary to establish the testator was of sound mind include: the testator intended to the writing to be a will, he/she knew the nature and extent of the disposable property, ability to recognize the people who would “naturally” benefit from the testator’s death, and simultaneously be able to retain the first three elements in the testator’s mind so as to make reasonable judgments.

How Does a Will Become Validly Executed?

Each state has its own requirements for a validly executed will. For example, a will to be validly executed in the state of Florida, the will must be signed by the testator (or by another person at the testator’s direction, in the presence of the testator), the testator must sign at the end of the will, and it must be witnessed by two witnesses who must sign the will in the presence of the testator and in the presence of each other. In Florida, a testator does not have to “publish” the will by communicating to the witnesses that they are signing a will as opposed to another legal document. Furthermore, a will executed by a Florida resident, who happens to be in another state at the time of the execution, must still execute the will in accordance with Florida law.

What Does It Mean To Die Intestate?

The law of intestacy governs the distribution of a person’s assets if they die without a will. The person who dies and subsequently whose property distribution is at stake is called thedecedent. With the advancements of modern technology and the advent of online legal services, it probably seems pretty unlikely that a person would die without a will. However, the reality of the situation is that approximately one-half of the American population dies intestate. This occurs so frequently because people have a hard time confronting the unpleasantness of mortality, which often leads to procrastination.

What Are Statutory Wills? What States Recognize The Validity of Statutory
Wills?

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.

What happens if a person dies without a will?

If a person dies without a will, then the property must be divided in a specific manner. If a person dies without a will, each individual state has written statutes that determine how the person’s property will be divided up. These statutes are known as intestate succession, or intestacy statutes.

Where and how are intestate succession laws written?

Intestacy statutes are written by states in a way that the state believes will serve the best interest of the decedent. There are general ways that a person will divide their property on death, and the intestacy statutes try and follow that general procedure in the case that someone dies without having written a will.

How does intestate succession work?

Generally, the intestacy statutes follow certain principles. First, the statutes will look to a surviving spouse of the decedent. If there is a surviving spouse, it is most likely that they will receive a majority, if not all, of the decedent’s estate since the two would have shared the property jointly during their lifetime. If the decedent has children with someone besides the surviving spouse, then the intestacy statutes may give those children a portion of the estate. However, if all of the decedent’s children are also the children of the surviving spouse, then the children would get nothing, since the law assumes that they would inherit the property after the surviving spouse dies.

What if the person does not have a surviving spouse?

If there is no surviving spouse then the statutes will look at other people related to the person by blood. These relationships are based on who is closest to the decedent. The next individuals to inherit would be the decedent’s lineal descendants (children, grandchildren, etc.). If there are no lineal descendants, then the court will look to the decedent’s parents, followed by the decedent’s siblings, and the siblings’ lineal descendants. If there are no lineal descendants of the decedent’s parents, then the court will look to grandparents, etc. until an heir is found. There is a limit in what is called the “laughing heir.” The laughing heir limit is where the person who would inherit is more excited about inheriting than they are that the person died. If the court finds that the only person who would inherit would be a laughing heir, then the property will transfer to the state.

What if more than one person has the right to inherit the property?

If there is more than one person who would inherit, such as multiple children of the decedent, then the law will divide the property equally between them. However, if one of the children died before the decedent, then the normal practice is to grant that child’s heirs, if any, the right to the deceased child’s share of the estate. For example, if Dan dies, having three children, Adam, Bob, and Clara, but Bob died before Dan with two children Eve and Francis; the estate will be given 1/3 each to Adam and Clara, and 1/6 each to Eve and Francis. This is inheritance by representation, since Eve and Francis inherit through the right of their deceased father, Bob.

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