Last Will And Testament Laws



Posted: Friday, January 27, 2006

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The laws of each state specify conditions for writing a last will and testament. Under old common law there used to be a separate writing disposing of real property (real estate) called ‘testament’, and a separate writing disposing of all other property called ‘will’. Hence the archaic phrase ‘last will and testament’.

Because wills are documents to survive after their testators, the laws are very strict as to what should be or not be regarded as wills, as well as their proper implementation. Take the example of Alabama. The state stipulates that the maker of the will must be above 18 years of age. He must be of sound mind and he must be free from improper influences. As to how a will must be made it is stated that the will must be written, must be signed, and witnessed in a special manner provided by the Law. A person can change his will as many times as he pleases either by executing a new will or by adding a legal amendment called as a Codicil which has to be carefully made. Professional legal advice must be sought if. You find the State Laws complicated.

The law comes to play especially when a person dies intestate. In Alabama, for example, if a person with a wife and 2 children dies, leaving $100,000 without a will, then the spouse will receive the first $50,000 in property value plus one half of the balance of the estate, and the children will receive one fourth of the balance of the estate. Similarly, if there is no will, the person’s administrator cannot carry on the business of the deceased without approval from the court. If there are minor children (under 19), the court may appoint a guardian. Since the person has not named an executor, the state will appoint one to take care of the estate.

Some states recognize holographic wills which are completely handwritten personalized documents of persons caught in emergency situations. A holographic will need not be witnessed but a proof of handwriting must be produced in the court during probate proceedings.

If the will is not holographic and is printed it is required that the testator must sign it in the presence of at least two witnesses (three in some states like New Hampshire). To avoid future contesting of wills, it must be declared that the testator is of sound mind and free from undue influence from any quarter. The Law is also common to all states that the witnesses to the will cannot be named as beneficiaries in the will.

The law also allows for a person to change his will according to the changing circumstances in his life. He may marry, have a new child, get a windfall profit, etc. Revoking earlier bills and executing new one can bring changes. Or, codicils can be added to the existing will, which makes amendments, deletions and additions. A witnessed will can even be amended by a holographic codicil.

The laws of each state differ slightly in their formation and implication. But basic laws in all states follow the above patterns.

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