Frequently Asked Questions About Wills
1. What is a will?
A will is a person's expressed intention of what should be done with his property after he dies.
2. What are the requirements for a will?
The specific requirements depend on state law. Commonly, the will must be in writing, signed by the "testator" and witnessed by two persons. The testator normally must have attained the age of majority, and must be of "sound mind" at the time the will is executed. The witnesses must be "uninterested" individual, meaning they're not beneficiaries of the will.
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3. Who needs a will?
Since most everyone dies possessing some property, most everyone needs a will. State law decides what happens to property in the estate of a person who dies without a will. The default plan normally distributes property to relatives. Someone who leaves behind a significant friend, or even a fiance, will not be able to provide them with any inheritance unless there is a valid will.
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4. Who should draft my will?
Only an attorney can legally draft a will for a person, unless a person drafts his own will. Personally drafted wills are often incomplete, and therefore invalid under state law. An invalid will is worthless. Kits for writing a will are normally not state-specific. If your will fails to follow state law, it will be invalid.
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5. Can a will be changed?
Yes, if the testator is competent. A new will or a "codicil" can be executed to create a new scheme for disposing of the testator's property. A divorce will automatically change a will that leaves assets to an ex-spouse.
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6. Can I appoint a guardian and conservator for my children in my will?
Yes, but the appointment may be challenged if there is opposition.
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7. How can a person contest a will?
A person contests a will by filing the relevant documents with the probate court. The person normally must be "interested" that is, must be an heir or a beneficiary under the will. There are time limits for contesting a will. You must have grounds to have a chance of successfully contesting a will. Unhappiness with the proposed distribution of property is not a valid ground. Valid grounds usually entail incapacity, fraud, undue influence and duress.
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8. Why must an estate go though court?
If there is real or personal property or financial assets, someone will need legal authority to transfer the property to the heirs. If the estate is producing income, taxes will have to be paid. Sometimes creditors will need to be paid from the estate property.
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