A will is the written instructions we leave for the judge in probate court. It stands as our statement of how we would like our property handled after we die.
Historically, a "will" controlled real property and a "testament" controlled personal property. Now, we refer to it as a “Will” or a "Last Will and Testament".
Any person over the age of majority (age 18 in most states) and of sound mind can draft his or her own will. Each state may have slightly different rules but these are the requirements:
So, let’s say my client Larry wants to make out his will. Larry will have to do the following:
* Larry identifies himself as the maker of a will which is why his name and the words "last will and testament" appear on the front of the document.
* Larry revokes all other wills he has made in the past.
* Larry states that he is mentally fit to give away his property, and that no one is forcing to him make the will.
* Larry signs and dates the will.
* Larry has two people, who are not named to receive gifts in the will, say that they watched him sign and that he knew what he was doing.
* Larry’s will names the people who will receive his property.
After Larry has died, legal proceedings will be started in probate court. The judge will determine if his will is valid. The judge also appoints a person to represent the testator. This person is called an executor or personal representative. In some cases one or more of the witnesses are called upon to testify or sign a "proof of witness" affidavit.
In some states, including Illinois, state law provides for a "self-proving" will, where witness testimony is included in the will itself. If the will is ruled invalid in probate, then state law determines who receives the property. If he will is invalid then it is as if the will were never written. Larry is said to have died intestate or “without testament”. The person who holds the will must file it within 30 days of Larry’s death.
Once Larry has died then he is no longer available to answer questions about what is in his will. If there is are question about the words he used in the will they stand on their own and he can not be consulted regarding what he really meant. Because of this, we need to be extra careful to be sure that the will is written properly.
If Larry wrote out his will with paper and pen it would be said to be a holographic will. Some states allow this. Very few states allow spoken wills. A will that is spoken and not written is call a nuncupative will.
If Larry decides that he would like to get rid of his will he may destroy it. He may burn or tear the document, or he may strike out the signature. In some states, partial revocation is allowed if only part of the text or a particular provision is crossed out. Other jurisdictions, including Illinois, hold that the entire will was revoked if part of it was crossed out. Larry may also be able to revoke his will by directing another person to destroy it. A will may also be revoked by the execution of a new will. Most wills contain words which revoke any wills that came before them.
Author Resource:
My name is Tom Olofsson. I am a lawyer. I help families plan for the future. My hope is that this site will make it easy for you to find out about estate planning and to see if you would like me to help you plan for your family’s future. My goal is to help you decide which Estate Planning tools are best for you and your family.
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