Will (legal document)

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In the law, a will is a legal document created by a person (the testator[1]), directing the disposal of his/her property (the estate) at death to various heirs. The term "last will and testament" is commonly used in the heading.

In order for a will to be valid, it must be drafted in accordance with the laws of the state where the person resides. Although there are many "self-help" kits which purport to produce valid wills, and some states (but not all) recognize holographic wills (wills solely made out in the testator's own handwriting), it is generally preferred that an attorney familiar with state laws regarding estates and probate (the legal proceeding whereby a will is proven and the property given to heirs) draft the will. If the testator agrees that the will expresses his/her intentions, s/he signs it and two (some states require three) disinterested witnesses (persons who are not potential heirs under the will) also sign it, whereby a Notary Public attests to the will as well. Such a will is called a self-proving will.

Any person or entity may be an heir. Common heirs are spouses, children, parents (if the person is young and has no spouse or children), or charitable organizations such as churches, universities, or other non-profit groups. A will may also establish a trust (this is common if an heir is a minor) or may name a trust as heir.

However, only a natural person may be the executor[2]. But an executor may also be an heir, this is common where a couple's child would settle the estate and inherit all or part of it.

In the case of a married couple, a will can also provide for what happens in the event both spouses die at the same time or in the same incident (otherwise, the Uniform Simultaneous Death Act, or a state's law in such cases, will apply).

A will may be changed at any time prior to the testator's death, either by a completely new will, or by a codicil (an amendment). A codicil can change any portion of a will (such as to change the executor, to add or remove a bequest, or to add or disinherit an heir); however, if it is too extensive a court may consider it to be a completely new will. As such, it is preferred that an attorney draft any codicil, as with the will itself.

If a person dies without a will, or if the will is proven invalid, the person is said to have died intestate, and applicable state laws then apply (in that case, only natural persons are eligible to be heirs).

The laws of the state must be considered in drafting a proper will, such as:

  • The verbiage required in the will
  • The number of disinterested witnesses required to sign (two is the general rule, but some states require three)
  • Whether certain heirs can be legally disinherited, whether known or unknown[3]

Upon death, the will is entered into probate by the executor of the estate (an executor may also be an heir, such as the deceased's spouse or child). A probate court (which may be a separately-established court to handle probate cases, or may be part of another court's overall jurisdiction) will accept the will and hold hearings to determine if it is valid or if there are any persons wishing to "contest" the will (e.g. a disinherited child claiming that his father, having dementia, was unduly influenced by his mistress to change the will leaving everything to her). The hearing may take only minutes (if the will is in conformance with the law and there are no challenges) or years if it is highly contested. Once the court rules, property of the estate may be given (bequeathed, a bequest is what is given) to the heirs.

References

  1. In some older wills, the term referred solely to males and "testatrix" for females; in modern times "testator" refers to both males and females.
  2. In some older wills, the term referred solely to males and "executrix" for females; in modern times "executor" refers to both males and females.
  3. This particular issue came up in the will of Larry Hillblom, co-founder of worldwide shipping company DHL. Hillblom died, unmarried and purportedly without children, and left his estate to a medical school. However, Hillblom was a sexual predator (notorious for visiting underage Asian virgins); upon his death no fewer than eight women came forth claiming to have borne his children. Despite problems in obtaining DNA for testing (he disappeared in a plane crash and his body was never recovered, and his house was suspiciously wiped clean of any DNA evidence), eventually four children were proven to have a common DNA match; later analysis of DNA with Hillblom's mother proved that he had fathered them. Under the law where he resided (Northern Mariana Islands), children (even unknown and illegitimate ones) had legal claim to part of his estate, overriding any will provision to the contrary, and the four children were awarded part of the estate (the school received the bulk of the estate, and even cooperated with attorneys in the matter). See http://articles.latimes.com/1999/may/20/news/mn-39088.