WILLS

A will is an instrument, executed with certain formalities, that usually directs the disposition of a person’s property at death. 

WHAT CONSTITUTES A WILL

 

A will is an instrument, executed with certain formalities, that usually directs the disposition of a person’s property at death. A will is revocable during the lifetime of the testator and only operative at his death. Thus, an instrument that is operative during the testator’s lifetime (as by presently transferring an interest in property) cannot be a will.

EXECUTION OF ATTESTED WILLS

 

For a will to be valid and admissible to probate, the testator must meet the formal requirements of due execution imposed by the statutes of the appropriate state. These statutes are often referred to as a state’s Statute of Wills. If the statutory requirements are not met, the will is void (not merely voidable), and cannot be admitted to probate even if there is no objection. The formalities required for execution of a will vary from state to state.

HOLOGRAPHIC WILLS


The UPC and a majority of the states recognize holographic wills and codicils. [See UPC §2-502] A holographic will is one that is entirely in the testator’s handwriting and has no attesting witnesses. Where recognized, a holographic will usually may be made by any testator with capacity, but a few states limit them to persons serving in the armed forces or mariners at sea.

PROBATE AND ESTATE ADMINISTRATION

“Probate” refers to the proceeding in which an instrument is judicially determined to be the duly executed last will of the decedent (or, if there is no will, the proceeding in which the decedent’s heirs are judicially determined). At the probate proceeding, a personal representative is appointed to carry out the estate administration. In most states, the personal representative is called an executor if named in the decedent’s will, and an administrator if named by the court. Testate estates must go through some form of administration. Intestate estates need not be administered if the heirs are able to agree as to the distribution of property; however, they often are administered in order to cut off creditors’ claims and to ensure clear title in the heirs.

SUMMARY OF RULES AND PROCEDURE


The following is a summary of probate rules and procedure:

  1. Any interested person may file a petition for probate.

  2. The custodian of a will must produce it within a certain time (e.g., 30 days) after the death of the testator.

  3. The testator’s domicile at the time of death, not the place of death, determines the place of “primary” administration of the estate (but “ancillary” administration, including probate, is also necessary wherever property to be administered is located).

  4. A will must be offered for probate within a specified number of years. For example, the UPC requires that a will be probated within three years or the decedent is deemed to have died intestate. [UPC §3-108]

  5. A will must be probated in order for a person to take under its terms.

  6. A probated will cannot be collaterally attacked (e.g., in a later will contest) when a specified short statute of limitations after probate has run.

  7. A lost or destroyed will may be probated, provided its contents can be proved.

  8. In a probate proceeding, the following facts must be proved:

  • That the testator is dead (this fact is jurisdictional);

  • That the formalities of execution were observed; and

  • That the notice requirements for probate have been complied with.

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