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Wills

A will is a written document that allows a person to dictate how their property should be distributed after their death. It must be made by a person of legal age and sound mind. While laws provide default inheritance rules, a will allows a person to specify their preferred distribution that may differ. There are several types of wills including holographic, nuncupative, joint, mutual, and reciprocal wills. For a will to be valid it must be in writing, properly executed, intended to be a will, distribute property after death, and be revocable during the maker's lifetime. A will's validity is determined by the laws of the maker's last state of residence for personal property and location of real estate

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84 views2 pages

Wills

A will is a written document that allows a person to dictate how their property should be distributed after their death. It must be made by a person of legal age and sound mind. While laws provide default inheritance rules, a will allows a person to specify their preferred distribution that may differ. There are several types of wills including holographic, nuncupative, joint, mutual, and reciprocal wills. For a will to be valid it must be in writing, properly executed, intended to be a will, distribute property after death, and be revocable during the maker's lifetime. A will's validity is determined by the laws of the maker's last state of residence for personal property and location of real estate

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Pepa Juarez
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© © All Rights Reserved
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WILLS

A will is a written instrument by means of which a person makes provision for the disposal of his property to take effect
upon his death. The person, who makes the will, called testator or testatrix, must have reached the age of maturity and
must be of sound mind.
Necessity for making a will
Too many persons assume that “the law takes care of things without a will”. The laws of the states do provide for
distribution of an individual’s property on his death, but not always in the manner he would have preferred.
There are certain types of wills:
A holographic will is one that the testator writes, dates and signs entirely in his own handwriting. A nuncupative will is
one declared orally by the testator in his last illness or in contemplation of death and is generally limited to soldiers in
actual service or seamen at sea.
A joint will is a single testamentary instrument containing the wills of two or more persons and jointly executed by them. 
Mutual wills are the separate wills of two or more persons that are reciprocal in their provisions and are generally
executed in accordance with an agreement between these persons to dispose of their property to each other or to third
persons in a particular manner. 
Reciprocal wills are those in which each of two or more testators makes a testamentary disposition in favour of the other
or others.
The requisites of a valid will are:
1. that it must be an instrument in writing (except in the case of a nuncupative will)
2. That it must be executed as prescribed by the statute of the particular state
3. That it must be intended as a will by the person making it;
4. That it must dispose of the person's property after his death;
5. That it must be revocable during the lifetime of the maker.
The validity of a will is generally determined by the law of the state of the testator's last domicile (the place that he
intended to be his permanent residence). When real estate is disposed of by a will, its validity is determined by the law of
the place where the real estate is located. As regards the execution, a will must be executed with all the formalities
relating to signatures, witnesses and the like required by the laws of the state.
A gift of personal property in a will is called legacy or bequest, and the person who receives it is called legatee. A gift of
real estate in a will is called devise, and the person who receives it is called devisee.
In states like Louisiana, there is the law of “forced heirship”, by which children can never be deprived of their right to
inherit: only a portion of the estate may be disposed of by will.
A will is invalid when the person making the will was incompetent to do so, meaning he was under lawful age or was
suffering from a mental disability, when fraud or undue influence was exercised upon the testator, or when the formal
statutory requirements for execution were not fulfilled.
Probate is a judicial proceeding for proving a will. It means the proof and establishment of the validity of a will, since it
may not be the last will or it may have basic defects. Besides, the meaning of a will is sometimes ambiguous, so
whenever he desires, an interested party may ask the probate court to construe and interpret a will.
In order to revoke a will, the testator must be mentally competent. A testator may revoke his will by:
− A subsequent writing that may be a later will or a codicil.
− An instrument other than a will containing an express declaration of absolute revocation.
− Mutilation, cancellation or destruction of the will.
Sometimes, if a testator remarries and has children of the marriage, the will is revoked unless a provision is made for the
new mate and children.
The law also permits a person by will, card or other document to give upon his death all or part of his body to some
hospital, physician or research or educational institution.
Through the use of living wills or health care proxies, which are powers of attorney for health care, a person can
decide regarding the withholding or withdrawing of life-sustaining medical treatment. It’s a person’s “right to die”.
TRUST: a will may give one’s property outright to specified legatee or devisee, or it may set up a trust and give the
income from the trust fund to a specified beneficiary during his life or until reaches a certain age. Under a trust, legal title
to property is given to a person called trustee who is directed to administer the trust for the benefit of another party
called beneficiary.
The beneficiary also has a right to the property called equitable interest. When the trust is over, the beneficiary receives
the property in fee simple.
A trust created in a will is called testamentary trust, but a trust created by a person during his lifetime is called living
trust. When a minor is beneficiary to a trust, the income from the trust may be accumulated until he reaches the age of
majority. But no accumulation is permitted for an adult beneficiary.

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