Most people don't think about making a will until they have children, get married or other major event happens in their life where they realize it's time to think about their future. If you don't have a will and are reading this, make one now. Knowing what to put in a will and what type of will to create will help you start the process.
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If you haven't taken the time to draw up a formal will, the next best alternative is a handwritten will stating your intentions. Even though they may not meet the guidelines of a standard will, most states do allow your wishes to be considered. It's usually easy to interpret the writer's intent. If the will is in your handwriting and can be verified, it's admissible in a court of law. These are usually short and simple.
Two requirements are necessary for this type of will to be considered valid: a mental state (of sound mind) and the intent to make a will.
Oral wills have less authority than handwritten wills. First, they're only recognized in certain states. Second, they usually require a presence of fear of death. These only apply to personal property so there may be other considerations not taken into account.
Joint and Mutual Wills
A joint will and mutual will are the same thing. They distribute the property of two or more people. Most of the time, it's a married couple signing one will instead of each person having a separate one.
Another name is reciprocal will. Simply put, a husband and wife agree to have mutual wills so that if one dies the other receives all or most of the estate of the other spouse.
Conditional and Contingent Wills
Conditional wills only go into effect when a certain act or condition happens. This means something other than the person who wrote the will's death. This could be a future event not closely related to writing the will, such as attaining a certain age. In the movie "Brewster's Millions," Richard Pryor only inherited after spending millions to learn how to appreciate money. This is an extreme example, but strange conditions have been know to apply.
A statutory will is one that contains standard terms provided by state law to simplify the process. This will is normally made by using a form that provides the basics of a will, but allows you to fill in the blanks or check off the specifics. A few states have mandatory provisions considered part of the statutory will. In these states, the standard terms are implied, even if they weren't explicitly written in the will.
A codicil is an addition to a will. It's usually another document and used if you don't want to write a completely new will.
People also add codicils to their wills to account for major life changes. A major life change may include a birth, adoption, marriage, divorce, death of an heir or the loss of property in the will. The codicil must be witnessed and signed just like the original will.
When a person gets married after a will has already been signed, the new spouse is called an after-acquired spouse. Most legal professionals recommend that a new will should be written rather than just adding a codicil to ensure that the spouse is included in the will.
Under the general laws of wills, there's a rule to protect a surviving spouse who's left out of a will. This rule is called an elective share and allows a surviving spouse to claim a portion of the deceased's estate regardless of the will's contents. The portion of the estate that the spouse is entitled to depends on the laws of the state.
Questions For Your Attorney
- What happens if I die without a will?
- How do I create a codicil?
- Does my state require a statutory will? If so, how does this affect me?