Wills

What is a Will. A will is a document designed to transmit property on death. A will is distinguished by this characteristic: it take effect only upon death. It has no force and effect whatsoever prior to death. It transfers nothing at the present time. It is thus completely revocable. The person who makes the will is commonly called the testator in legal terms. The will devises real property and bequeaths personal property. The persons who inherit are called heirs. If a person dies without will, we say he died intestate. Disposition of his probate estate occurs according to the laws of intestate succession, that is according to statute.

A codicil is an amendment to the will.

What is probate? Strictly speaking, probate means the acceptance of a will as the valid will of the deceased. When we probate a will, we present it to the probate court in a formal proceeding which affords interested parties the right to challenge its validity. Once a will has been "probated", it has been accepted, and the estate is then administered by a personal representative. More broadly speaking, we refer to probate as the process of administration, throughout the formal or informal procedures to dispose of the estate. Or, we speak of the laws of probate as encompassing the substantive and procedural rules which govern the entire process.

This section is not about probate, it is about wills. It discusses the nature of a will, the formal requirements for making a will, and issues involving its interpretation. Probate will be discussed elsewhere. Note that each state has specific requirements for wills. You should not attempt to draw a will based upon the information contained in these pages. This is an educational document, not legal advice.

Will substitutes. There are all sorts of other ways of passing property to others upon death. They all have various advantages and disadvantages. Often people choose these options to avoid the expense of probate. This remains still a valid reason for choosing a will alternative, but in many states probate procedures are now quicker and less costly than they once were. An estate planner will help you make an appropriate selection.

Trusts. A trust makes a present transfers property to a trustee. It is thus differs from a will in that it makes a present transfer of property. A trust may be revocable, thereby preserving the option of changing disposition. Trusts may have significant present tax consequences, especially in large estates.

Joint or Survivor Accounts. A joint accounts may provide that the joint owner becomes sole owner of the account upon death of the other owner. Sometimes this creates unexpected consequences. If, for example, you intend to equalize distribution of cash to your children, you might originally do so by creating three joint accounts with equal balances. But later, it becomes necessary to invade one of the accounts. Your children might be uncertain as to your intent and an unequal distribution might result.

Insurance. Insurance, of course, is a will or probate substitute. Insurance passes free of the probate estate (unless of course the estate were named as beneficiary).

DeedsA deed can be a will substitute. Mrs. Smith might transfer her farm to her children, reserving to herself a life estate. If she does that, she has divided the ownership of her farm. She has kept for herself ownership until she dies, and given away ownership of the farm after her death. This transfer, however is quite different from a will. A will is revocable. Transfer by deed is not ordinarily revocable In other words, when Mrs. Smith transfers her farm to her children, reserving a life estate, she cannot later change her mind and give the property to someone else. Moreover, she has lost the ability to sell the farm, because she does not own all of it. If she needed to mortgage the farm to obtain money for an emergency, she would need the consent of the children, because they too are owners. Finally, her children have the present power to sell or mortgage their interest in the farm, because Mrs. Smith has given them ownership rights. That means, for example, if one of the children declared bankruptcy, his rights in the farm would go to his creditors, and Mrs. Smith would now be a co-owner with her child's creditors.

Gifts. Gifts, of course, can serve as a kind of will substitute. But they differ from a will or revocable trust in that the property once given cannot be retrieved, except upon the voluntary transfer back of the property.

Formalities for making a will. Each state has certain minimum formalities necessary to establish that a document is a valid will. Signature of the testator and witnesses are typical requirements. These formalities are designed to make sure that the testator really intended to make a will, and also to prevent someone else from creating a phoney will. One of the reasons that people hire a lawyer to draft their will is to make sure that they comply with the formalities required for their particular state. If a document fails to comply with those formalities, it will not be accepted for probate, that is, will not be adjudicated as the last will of the deceased.

Capacity to make a will. A will may not be admitted to probate if the testator lacked capacity to make the will at the time it was executed. The requirements are rather minimal. Focus upon the mental capacity at the time the will was signed. If the person had periods of incapacity, the will may still be valid if the testator met the test when the will was signed. In most states, a person has capacity to make a will if:

He knows who he is.
He knows "the natural object of his bounty", ordinarily that means his family.
He understands generally the nature of his property.
He understands generally the concept of transmitting that property at death.

People can make wills who are unable to manage their own estate or engage in business; who are otherwise unable to make a legally binding contract; who seem eccentric; who are illiterate; who are alleged to be morally depraved. A will may not be set aside merely because the person made an unnatural or unjust disposition or because the person was disabled. An alcoholic may make a will; a person who is mentally ill may make a will. All of these factors may be evidence of incapacity, but they are not alone sufficient to prove incapacity. A person is presumed to have capacity to make a will. That means that, in the absence of strong proof, a the court will probate a will.

Example. Here is an actual example of a case we handled at Rinke-Noonan. Mr. Jones (not the real name) resided for most of his life in a Veteran's hospital and halfway houses. He could not care for himself. Several decades before he died, Mr. Jones spent a few weeks in a halfway house. There, he and a friend decided to make a trip to Minneapolis. While in Minneapolis, the Goodwill helped him out by giving him some clothes. When he returned from Minneapolis, he wandered into a rural lawyer's office and asked the lawyer to draft a will leaving all of his property to the Goodwill. Jones did not manage his own property. It was handled by a local bank. That bank accumulated several hundreds of thousands of dollars of disability benefits for Mr. Jones. On his death, his relatives sought to challenge the will, because of Mr. Jones lifelong mental problems. We successfully represented the Goodwill in upholding the will. Mr. Jones was eccentric at times; he had mental difficulties; but he knew who he was, and met the other tests of testamentary capacity.

Undue influence. Sometimes relatives allege that the will results from undue influence. Undue influence results when another person essentially overwhelms the will of the testator. Merely showing affection, urging the testator to draft a will in a certain way, or disparaging others, is not sufficient. If the influence comes from one in a fiduciary or trust position, the standard is lower. If the testator was in a mentally weakened condition, closer scrutiny may result.

How do you interpret a will. Over the centuries, standard rules for interpreting wills have been developed. The danger in writing ones own will is that you will write your will in a way likely to be misunderstood. If you are writing a will, you are trying to make sure that your property goes to the right people. You avoid the risk of mistake when you hire a lawyer to draft your will. In the next frame, we discuss some of the ideas behind will interpretation. We are not intending to teach you to write a will: we are trying to give you some general idea how lawyers and courts go about resolving disputes involving wills.

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