Wills and Estates: Making a Will, and What To Do if There Isn't One

Introduction and Disclaimer

Thanks for visiting my post on wills and estates. I know that people often have many questions about wills, so I've tried to make it easy to understand such documents by giving a list of the more common terms and their definitions, as well as a quick overview of the kinds of information a will should contain.

Please understand that nothing here is to be interpreted as legal advice; it is presented for informational purposes only. Please consult with an attorney regarding any legal questions that you may have with respect to the information presented. Also, please be aware that while the information presented is generally accurate, the laws of your state may vary. Beyond that, my only advice is that it might be worthwhile to consult a form book or a text on the matter if you decide to draft a will yourself.

Last but not least, a will is not likely to be the only estate-planning document you require, so please visit my post on Power of Attorney and Other Documents You'll Need.

Definitions of Will and Estate Terms

Below are definitions of common words, terms and phrases associated with drafting wills and estate matters:

• Codicil – a later amendment or supplement to a will. (Basically, if you think of something you'd like to add, you don't have to draft the entire will all over again.)
• Decedent - A person who has died.
• Estate - all real and personal property that a person owns at the time of their death; subject to the satisfaction of any estate debts, this is the property that will be inherited by the decedent's heirs
• Holographic Will – a handwritten, unwitnessed will. These are valid so long as they are wholly in the handwriting of the testator and signed by the testator as well. Moreover, you can have a holographic codicil to a typed, witnessed will.
• Testament – the disposition of property in accordance with a will.
• Testator - a person who makes a will; a person who dies with a will.
• Will – an instrument used for the disposition of one’s property after death; it disposes of both real and personal property.
• Probate – the action or process of proving before a competent judicial authority that a document offered for official recognition and registration as the last will and testament of a deceased person is genuine. To go through probate is to have a will administered by a court.

Probate performs 3 functions

1. It provides evidence of transfer of title to the new owners by a probated will or decree of intestate succession;
2. It protects creditors by requiring payment of debts; and
3. It distributes the decedent’s property to those intended after the creditors are paid.

Making a Will

In general, the will should contain certain basic categories and statements. The following is a list of items that should probably be present in any will (for ease of reference, I will use the pronoun "he" to refer to the testator):

Title: Should indicate that this is the last will and testament of the testator "Last Will and Testament of __________"

Introductory paragraph: Should state that this is the last will and testament of ________, that he is of sound mind and that he hereby revokes any previous wills or codicils.

A. Identity of Family Members: Testator should indicate his marital status at the time the will was drafted, the name of his spouse, and the identity of any children or other heirs, including their names and whether they are minors. The testator should also indicate what should happen if any children are born after the making of the will (e.g., "Any issue born to me after execution of this will shall share equally in my estate with those named above...")

B. Payment of Expenses: Testator should dictate, generally, the payment of expenses, debts, taxes, etc., which should be paid out of the assets of the estate. The task of paying such expenses will be the duty of the Executor of the estate.

C. Disposition of Estate: This section should first address any specific bequests (e.g., "I leave my hunting rifles to my son John and my vintage record collection to my daughter Julie..."). Following that, disposition of the "rest and residue" of the estate is made - usually to children (or in the case of deceased children, grandchildren). If there are no direct descendants, the remaining estate usually goes to the testator's heirs-at-law. (FYI: property to a minor is usually put into a trust or into the hands of the minor's guardian.)

D. In Terrorem Clause: A provision in the will stating that any heir who attacks the will or contests it in any way will forfeit his inheritance.

E. Survival: To inherit, an heir must, by definition, survive the testator's own death. However, the testator can define survival in any way he wants. It can be required that an heir survive the testator by 5 days, 5 months, what have you. An heir who dies prior to the defined survival period is treated as having predeceased the testator.

F. Appointing the Executor: In this section the testator names the person to be Executor of his estate, and an alternate in case the original Executor can not or will not serve in that capacity. This section also states whether the Executor is required to post a bond.

G. Executor's Powers: This section details the limits of the power and authority granted to the executor, such as the power to sell estate property, borrow money, settle debts, and so on.

H. Definitions: Definitions of terms used in the will. For example, whether the term "children" means only biological children or both biological and adopted children.

Signature: The testator must sign and date the will.

Witnesses: Typically, two witnesses are required to attest to the will.

(Also, it's almost standard these days to have the testator and witnesses sign a notarized affidavit stating that the document is the last will and testament of the testator and the witnesses signed it.)

Will Contests: Contesting or Attacking a Will

Will contests are not uncommon, and usually occur when someone feels that they were somehow treated unfairly by the will or that it didn't truly reflect the intent of the testator.

However, only interested parties can contest a will (heirs, spouses, creditors, etc.). Grounds for contesting a will include: defective execution; lack of testamentary capacity; undue influence; fraud; mistake; and/or testator did not know the contents of the will.

Defective execution usually means that the will was not executed in a way to make it effective. For example, if only one witness signed, it could be considered defective.

Undue influence refers to someone improperly influencing the testator in some way. This is commonly seen in situations where one child is the primary caregiver for an elderly parent, and ends up inheriting everything upon the parent's death. (Siblings will claim that the caregiver unduly influenced the parent and convinced the parent to disinherit everyone else.)

Fraud means that the testator was somehow tricked into drafting the will in a certain way, usually to include someone who shouldn't have been an heir or to disinherit someone who should have been an heir.

Mistake simply means the testator made a mistake or there was a typo. For instance, if the testator intended to leave someone $100,000.00 but instead typed it is as $1,000,0000.0 (arguably leaving them $1 million).

Testamentary capacity is usually attacked in one of the following ways:

• Did testator understand the nature of what he was doing? (Making a will)
• Did he know the nature and value of his property?
• Did he know the natural objects of his bounty?
• Did he understand the disposition he was making?

Dying Intestate (Dying Without a Will)

The lack of a will means that the division of estate assets is at the mercy of state law. States tend to have their own rules when it comes to intestate estates, but typically what you will find is the following:

I. Intestacy in a Community Property State
In a community property state, if the testaor is survived by his spouse, the division of property depends on whether they had children together. For instance, if all of the testator's children are also children of the surviving spouse, then the surviving spouse gets everything. If, however, the testator had children who are not also children of the surviving spouse, then the spouse ges half of the estate and the other half is divided between the decedent's children. Here are examples of these two scenarios:

Testator Survived by Spouse (Community Property State)
a) Testator and spouse have 3 kids together: Surviving spouse gets everything

b) Testator has 2 kids with first wife, adopted 3rd with second wife: spouse gets ½ and kids get 1/6 each.

II. Intestacy in a Separate Property State
In a separate property state, the division of the estate would ordinarily be something along these lines:

Survived by Spouse (Division of Separate Personal Property)
Surviving wife gets 1/3, kids get 2/3

Survived by Spouse (Division of Separate Real Property)
Surviving wife gets 1/3 life estate, kids get 2/3


If the testator has no surviving spouse, then the estate is divided amongst the descendants per capita, with representation.

(Ordinarily, a will declares that heirs will inherit either "per capita" or "per stirpes".

• Per Capita – “By the head”; each person gets an equal amount
• Per Stirpes – “By the roots”; each child is a root, so one share for each family line; if a child dies, then the child's offspring inherit in his place

This is usually stated in the provision of the will dealing with disposition of the estate.)


Miscellaneous Will and Estate Matters

What follows are a few miscellaneous issues that relate to trusts, wills and estates:

• A will has to be a document intended to be offered for probate.
• To be a will or codicil, a document must be intended to take effect at death.
• Wills can be revoked by a subsequent document or by physical act (destroying it)
• 120-hour rule – generic rule stating that beneficiaries must survive testator by 120 hours
• Divorce revokes all gifts in favor of former spouse
• Children – presumed to mean children by all marriages and adopted children. Stepchildren and grandchildren are not included. Nonmarital children not included, except when there are no marital children or the intent to include nonmarital children can be shown.

Other Resources

Please visit my post on Wills, Estates and Power of Attorney to determine what other documents, in addition to a will, you may need to complete your estate plan.