Wills & Estates

One important aspect of family law, which is expansive enough to be treated as an area of law by itself, is the issue of how a person's property will be distributed after their death.

This is broadly termed as the law of wills and estates. There are many things you should consider if you want to have any control over what happens to your property after your death. There are many different ways to control how your property is distributed. Which ones are best for you will depend heavily on what your general objectives for your property (do you want to ensure that your family is provided for, or make a significant gift to a charity, etc.?), who, specifically, you want to leave it to, and the size and type of your estate.

Intestacy

The simplest form of estate planning is to simply not write a will, and let your property pass to your closest living relatives after your death.

When a person dies without a will, they are said to have died "intestate," and the distribution of their property is governed by state intestacy laws. Typically, these laws will transfer ownership of the decedent's (the person who has died) property to their closest living relative. The exact order of priority varies slightly from state to state, but typically property goes to the surviving spouse first.

If there is no surviving spouse, it goes to the decedent's children. If the decedent has no living children, it goes to the grandchildren. If the decedent never had children (and therefore doesn't have any grandchildren), the property goes to their parents, then to his or her grandparents. After this, more distant relatives, such as aunts/uncles, cousins, nieces/nephews, and stepparents are considered. Basically, the list of potential beneficiaries is long enough that, in the vast majority of cases where someone dies without a will, it will be possible to locate at least one heir. However, if no heirs can be found, the property goes to the state.

If you have a relatively small estate, and only want to leave your property to your immediate family, intestacy might be a viable, if not ideal, option. The main advantage of relying on the intestacy system is that it saves you the time and expense of writing a will. However, it does introduce a bit of uncertainty, especially if you have been married more than once, and have surviving former spouses while your estate will go to the person who was your spouse as of the time of your death, former spouses may be able to challenge this in probate court, and grind the process to a halt.

Furthermore, if you never make a will, you can't determine which of your family members get individual pieces of property. For example, if you want to leave your home to your spouse, but your car to your oldest child, intestacy would not allow you to accomplish this, but making your wishes known in a will can.

Wills

A will is a document in which you explicitly lay out what is to happen to your assets after you die. It is far more flexible than intestacy, which automatically gives all of your property to your closest living relative at your death, with no room for modification.

If you write a will, you can leave your property to any legal entity (a person, corporation, charitable organization, government, etc.) you want. Most people want to leave their property to their immediate family, and maybe a few very close friends. People with larger estates may wish to make sizeable charitable donations. A will makes all of these things relatively easy.

In order to write a valid will, a few formalities must be followed in its drafting. First of all, the document should make perfectly clear, at or near the top of the first page, that it is your last will and testament.

The will should then, in simple and plain language, identify all of the property you want to devise, and who you want to leave it to. In addition to clearly identifying the property you want to distribute, you should clearly identify the people you want to leave it to. For example, suppose you write a will leaving your house to your son, without stating his name in the will. Maybe it seemed unnecessary because you only had one son at the time the will was made. But what happens if you subsequently have another son, and before you can update your will, die suddenly?

Your survivors will simply see the words "I leave my house to my son" with no sure way of knowing which son the will is referring to, which might lead to a legal dispute between your children.

In addition to making sure the substance of the will is well-written, there are a few additional formalities that need to be followed. Typically, when the testator signs the will, the signing has to be witnessed by two neutral parties. Generally, a party is considered neutral if they aren't related to the testator, and aren't named in the will. This is because a person with no direct interest in the will has no rational reason to try to sabotage its validity.

In a few states, it's possible to write a will without following some of the formalities that are ordinarily required. If you write a will entirely in your own handwriting, it does not need to have the signatures of witnesses to be valid. This is because witnesses function as some assurance that the document purporting to be a person's will is authentic. If a will is written in the testator's own handwriting (assuming it can be confirmed as the testator's handwriting, against other samples), it is far more likely to be authentic, since a handwritten will is much easier to forge than a typed one.

This is really only a good option if, for whatever reason, the need to write a will presents itself immediately, and there is no time to bring in witnesses. However, because holographic wills are often drafted without any legal advice, they are sometimes unclear and ambiguous, which can lead to disputes between potential beneficiaries. Furthermore, if a holographic will is written in a rush, it may not even be clear by looking at the document that the testator intended it to serve as a will. If there is not enough evidence that a handwritten document was intended to be a will, a court might not give it any legal effect.

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