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Wills, Probate & Estate

What Is a Will?

A will is a written communication by a person stating how they want their property disposed of at death. In most states, an oral will, even if tape recorded, is not valid. A will must be signed, and at the signing there must be witnesses.

What Is a Trust?

A trust is a legal property interest held by one person (trustee) for the benefit of another (beneficiary).

What Are the Requirements for a Will?

Specific requirements depend on the state where the person drafting the will lives. An estate planning attorney will draft your will so that it will be valid even if you move to a different state or a different country: 

The testator (the person to whom the will applies) must have reached the age of majority (either 18 or 21, depending on your state), and must be of sound mind at the time the will is executed.
The testator must sign and date the will.
Most likely, a witness cannot also be interested in the will (i.e., the witness cannot be named to receive anything in the will). Witnesses also must be competent at the time they witness the signing - if they later become incompetent, the will is still valid.
Usually, a will need not be notarized.
The document must expressly state that it is your will.

What Happens If You Die without Drafting a Will?

If you die without a will, you are considered intestate. Every state has rules for distributing your property should you die intestate. Usually, the spouse and children will take the property. 

Can I Make a Will Myself?

A great deal of will drafting can be done by someone who takes the time to learn the local laws dealing with wills. People usually need an attorney, at least for a consultation, to answer some of the finer points of will drafting. In a straightforward situation, a simple form is the answer. However, if you have specific issues that are important to you and your family, consulting an estate planning attorney can save a lot of money and headaches.

Can I Change My Will?

Yes. A new will, or an amendment to an existing will (called a codicil) can be executed to change the disposition of your original will. Be aware that if you change a portion of your will, your state law may consider the whole will republished. Republished means that the date of the change becomes the date that the whole will is considered to be written. 

How Do I Appoint a Guardian for My Children?

A will can name a guardian if both parents die while the child is still a minor. A court is not required to appoint the guardian you choose (if for some reason the guardian has become unfit, and it would not be in the best interests of the children, a court will not place children with that guardian). A will may be the only way you have to name a guardian for your children.

What Is a Personal Representative?

A personal representative is the person who will represent the estate. The traditional name for a personal representative is executor (or executrix if female). A person appointed by the court to represent the estate if the deceased doesn't have a will is known as an administrator.

What Is Community Property? 

Community property, also known as marital property, is (as of 2004) recognized in Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington and Wisconsin, but there is no uniform community property law. In the above mentioned states, property is basically divided into two categories: community property or separate property. If you have lived in one of these states while married, property that became community property in that state retains that character even if you move to a non-community property state: 

Community Property: All property owned or acquired by a married person is considered to be community property unless the person can prove that it is separate property. Each spouse owns one-half of the property and has an equal right of management and control over the community property, but neither spouse may sell any of the property without the consent of the other spouse. 

Upon divorce, community property is divided equally between spouses.
Community property is all property, including income from wages and self employment, homes, cars (even if only one name appears on the title), acquired during marriage by either spouse and is automatically split upon divorce.
Each spouse can give their half of community property in a will. Community property does not automatically go to the surviving spouse, as with property held in joint tenancy. The deceased spouse's half of community property is still subject to federal estate taxes.
Community Property States:

Arizona
California
Idaho
Louisiana
Nevada
New Mexico
Texas
Washington
Wisconsin

Separate Property: Property that was owned by either spouse before marriage or was acquired by one spouse after marriage as a gift, inheritance, bequest, or devise is considered to be separate property. Income from a separate property is also considered separate property, as is property acquired during marriage with funds derived from separate property. If separate property is combined with community property to the point where it is impossible to tell which is which, separate property is then considered community property. (IMPORTANT: if you have ever lived in a community property state, you must keep complete, accurate records of how separate property was obtained and used in order to overcome the community property presumption). 

What Happens to Community Property When One Spouse Dies?

When one spouse dies leaving a will, his or her share of the community property will go to the beneficiaries named therein. Who inherits community property when there is no will varies from state to state. In some states, the surviving spouse inherits the property, and in other states the decedent's share goes to his or her descendants. 

What Is Probate?

Probate is the court process that administers your estate as provided in your will. Probate verifies your will and sets up the distribution of the remaining estate. Probate can often be quite expensive, and take a significant amount of time. It is important to consider the impact of probate on those that you are leaving property to in your will. See avoiding probate to learn about alternatives to probate that may save your estate money.

How Can I Contest the Will?

You can contest a will by filing the appropriate papers in probate court. The person who is contesting the will must be interested, which means that person is an heir to the estate, either in the will or as a matter of law. The time limits for contesting a will vary from state to state. 

The grounds for contesting a will are defined by state law. Examples of valid grounds include incapacity, fraud, undue influence and duress. 

Can I Make a Handwritten Will if I Don't Own Very Much Property?

A holographic will, or handwritten will, is still recognized in about 25 states. The person leaving the will must write the will in his/her own handwriting, and sign the will. Some states allow fill-in-the-blank forms, as long as there is some part of the will that is handwritten and it is signed. Normally, witnesses are not required for a holographic will.

How Do I Officially File My Will?

It is not necessary to file your will with any government agency. As long as you keep your will in a safe place, and make sure the executor of the will knows its location, your will is valid.

Should I Contact a Will Lawyer?

If you need to draft a will or other estate planning document, you should contact an experienced estate lawyer.