Writing a Will

1. Writing a Will

2. What is a will? • A legal expression, usually in writing, directing how the decedent wishes his or her property to be distributed after death. • Intestate - a person who dies when there is no will • All of the decedent’s property, called the estate, is controlled and distributed by a court-appointed person known as an administrator or administratrix • Testate – a person who dies leaving a valid will • The maker of the will is called a testator (male) or textatrix (female) • Personal representative who carries out the directions in the will is an executor (male) or executrix (female)

3. Function of Wills • Living Will – gives directives to physicians to the maker’s desires for use of life-support systems in case of terminal illness or vegetative state • Other names for Living Will • Directive to Physicians • Durable Power of Attorney uses a chosen or court-appointed individual the right to make health-care decisions, such as removal of life support

4. To be a valid Will: • Testamentary intent • Testator has clear intention and not pressured into signing the document and should not be mislead into thinking it is another document • Testamentary capacity • Testator must have mental clearness to know • Kind and extent of property in the estate • The recipients who stand to benefit • Testator knows he or she is making arrangements to dispose of property after their death • Testator must be over the age of 18 • Will must be signed at the end and witnessed by at least two adult witnesses who will not inherit under the will

5. Changing a Will • Can be changed or canceled any time during the maker’s life • Marriage, divorce, the birth of children, and other significant changes in a person’s life • Changes made using a codicil • A formal, written, and witnessed amendment • Same formalities as a will • Example**

6. Special Types of Wills • Holographic Will • Valid even without witnesses • Written in decedent’s own hand • Signed by the decedent • Not witnessed • Nuncupative Will (Oral Will) • Proclaimed during the maker’s last illness • Service personnel on active duty • Will must be witnessed and reduced to writing • Limited to controlling the distribution of personal property

7. Revocation of a Will • Desire of the testator • Destroying or defacing the physical copy • Marriage of the maker • Birth or adoption of a child • Written revocation in a later will

8. Procedure for Distribution of Will • Proof of death • Death Certificate • Official notification of death from an armed service • Testimony of the deceased’s presence in a disaster that resulted in unidentifiable or irretrievable bodies (judge issues a declaration of death) • Five or seven years of absence to be declared dead (Enoch Arden Laws) • Assembling, preserving, inventorying and appraising the assets of the estate and collecting debts owed to it • Giving public notice of the estate to creditors (6 months) • Paying valid claims against the estate • Distributing the remaining property according to the will or statute

9. Intestate Distribution • No spouse, but one or more children surviving, the children inherit equal share in real and personal property • With spouse and one or more children or grandchildren surviving, the spouse gets one-half of the real and personal property and children share equally in the remainder. If a child is deceased but has surviving children, those children share equally in the deceased child’s share.

10. Intestate Distribution - continued • With a spouse and no children or grandchildren surviving, the spouse gets one half of the real and personal property and the deceased’s parents are not alive, the deceased’s brothers and sisters received equal shares in the remainder. • No spouse, no children, and no grandchildren surviving, the deceased’s parents each receive one-half of the real and personal property. If parents are deceased, brothers and sisters of the deceased share equally.

11. Testate Distribution • Per capita distribution – Living lineal descendents split the property equally, be they children, grandchildren, or even further down the lineal tree • Per stirpes distribution – Lineal descendants split equally what a deceased parent would have received but receive nothing if the parent still lives • NO INHERITORS • If there are no inheritors, the property of the deceased reverts to the state (ESCHEATS)