Wills
What is a Will?
A will is a written instrument by which a person directs how his or her estate is to be distributed upon death. The estate consists of the property that one leaves behind after death.
One essential document for almost any estate plan is the will. The person who creates a will is a testator. A will allows you to:
- Select the person responsible for carrying out your final wishes (known as the executor or personal representative)
- Name a guardian to care for your minor children and manage their property
- Direct which probate assets go to which beneficiaries
- Determine who should receive the remainder (residue) of your probate estate
Each state has its own set of requirements that must be met in order to create a valid will. However, there are some common elements in the various state laws. In general, the testator must have had the mental capacity to create a will. This means that the testator must have understood what property he or she owned, who the property was being left to, and that by signing the will, the testator was creating a binding document to dispose of his or her property at death. Additionally, the will must have been in writing, signed by the testator and signed by at least two witnesses.
Some states recognize oral wills in certain circumstances, such as in cases of imminent death but never involving real estate. About half of the states recognize holographic wills, which are made in the testator's own handwriting and signed by the testator.
The type of will used when minimizing probate through the use of revocable trusts is a simple "pour-over" whose sole beneficiary is the private trust you create, disclosing to the public none of the actual dispositive provisions.
