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Summary

Wills are necessary for everyone who embraces a life changing event, such as marriage, birth of a child or divorce.  They are especially important for parents of minor aged children, or people who own significant property. An attorney can set up your will to include all aspects of your life that will be effected when you pass on.

When you draw up your will, you become the ‘testator’ (person making the will). You will also name an executor (executrix, if female) to carry out your written wishes after your death.

If you die without a will or a last will and testament, you leave behind an ‘intestate’ estate.
 Intestate estates are sent to the probate court, which appoints a paid personal representative, administrator,  to determine the legal heirs, pay the bills against the estate and distributes tangible property and money. In your absence, it is the administrator’s job to make the important decisions for you. Such as, appointing a guardian for your children or even selling your prized possessions.

Unfortunately, merely having a will does not solve your problems if it is poorly written or does not comply with state law, it may be invalid. However, if only a small and inconsequential part of your will contains an error, the remainder of your wishes will be honored.

Although state laws vary, a valid will must meet certain requirements, such as:

  • It must be in writing
  • It must be signed
  • It must be witnessed
Additionally, the testator must be of majority age and "sound mind".  (A married minor may be capable of executing a will in some cases.)  A will does not always require notarization, but notarization does add strength to its legitimacy.

"Holographic" (handwritten) wills are still recognized in many states. Such wills must be in the handwriting of the testator and bear his/ her signature. Witnesses are normally not required for holographic wills.
 
Once a will is executed, it’s also important to keep it up-to-date. For example, if the testator should divorce, re-marry, form a partnership, acquire new property, move to another state, have a child, or change his/ her mind about a bequest, the will should note this.

In addition to a last will and testament, most states recognize a living will or health care proxy which specifies whether or not you wish to have your life prolonged through artificial or extreme means. This goes into effect only when you are no longer capable of making these medical decisions on your own. 

A power of attorney may supplement a living will by naming an individual you have pre-selected to make those important health and financial decisions on your behalf should you become incapacitated.

In 1993, the Uniform Probate Code nationalized the order of rightful succession for all intestate heirs. For example a widowed, childless woman in Virginia dies intestate (no will in place), her next-of-kin, a sister living in Georgia that she hasn’t seen in 30-years will inherit her estate.  Despite the presence of her neighbor who cared for her and she loved like a daughter.

While there are minor exceptions, all States follow this succession line:
  1. Surviving spouse
  2. Children, including legally adopted children
  3. Siblings
  4. Surviving parents
  5. Grandchildren
Divorce terminates a spouse's succession right under a will, but separation, estrangements or disinheritance normally do not. 

While life partners can inherit in some States, fiancés and fiancées, or boyfriends and girlfriends generally can not.

Joint tenancy, which is when two persons own a piece of property together with the right of survivorship, is not the equivalent of a will. After the death of one person, the property automatically passes to the surviving owner without going through probate.

Because a will does not go into effect until after the testator dies, beneficiaries must wait for probate before they can contest it. Only persons with a financial interest in the estate can contest the will with the help of a wills attorney, such as a beneficiary or someone who would have inherited.

Some of the valid grounds for contesting a will include:
  • It was not signed.
  • It was not witnessed.
  • The testator was not of sound mind.
  • Factual mistakes were made.
  • It does not comply with state law.
  • There is evidence of fraud or undue influence.

Besides contesting a will, another way to stop the wrongful distribution of an estate is to hire an attorney to file a lawsuit against the person receiving property you believe is rightfully yours. This is called ‘tortuous interference’. It requires that you prove the defendant (person you're suing) interfered with the creation of the will. If you win your case, you will not only recover your property, but you will also recover attorney fees and court costs.

In order to avoid family squabbles, some testators insert a "no-contest clause” in their will.  Theoretically, the no-contest clause forces a beneficiary to choose between taking what the will gives them or receive nothing at all. But, not all states regard the no-contest clause in the same way, especially when either fraud or incompetence is alleged.

Living trusts do not negate the necessity of a will. Any personal assets (such as furniture, art, jewelry) that aren't part of the trust will need to be distributed through a will, with who gets what clearly spelled out.

Who Can Sue

A will can be a very tricky legal instrument and may be voided if even part of it is proven to have been made under duress, fraud or incompetence.
If you feel that a loved one was coerced into signing a will, or was not mentally sound when he/ she did so, you have the legal right to contest it. 

Wills can be contested on a variety of grounds by interested parties who believe their rights were wrongfully disregarded. Beneficiaries have the right to sue for increased inheritances and rightful inclusion. For example, a parent may have made unequal distributions among his/ her children or forgot to include one child. Or a spouse who was legally married at the time of death may have been disinherited and intentionally omitted. 

If you are an ‘interested party’ who wishes to contest a will, you will need an experienced estate planning attorney or wills lawyer to file the relevant documents with the probate court. Time is of the essence. Date limits for contesting a will vary by state. If you do not meet the established deadline, your case can be thrown out.

Additionally, you must have the proper grounds before you can contest a will. Unhappiness with your share of the proposed distribution is not a valid grounds for you or your wills attorney.

The two most common reasons for contesting a will with a wills attorney are: lack of mental competency and undue influence. To challenge a will based on lack of mental competency may be difficult to win in the absence of medical evidence.

In cases where the estate has been left to a non-relative third party; such as a doctor, a boyfriend, a neighbor or a charity; there is an avenue under The Family Provisions Act of 1982 that allows certain persons, such as family or dependent household members, to claim what they rightly deserve with the help of a wills attorney.

Other valid grounds for overturning a will are:
  • Failing to update a will after marriage, birth or a child.
  • Incorrectly naming charities or beneficiaries.
  • Not having witnesses or having incorrect witnesses
  • Not providing a discretionary trust for a dependent mentally or physically disabled child.

Interesting Facts

The oldest known will is that of an ancient Egyptian named Uah, written around 1797 B.C. In it, Uah gives all his property, including his “four eastern slaves”, to his wife Teta.

Many famous people did not have wills, including Presidents Abraham Lincoln, Andrew Johnson and Ulysses Grant,

When Pablo Picasso died at the age of 91, he left behind his artwork and an estate valued at $260-million, but no will.

The will of James Brown “The Godfather of Soul” was contested in early 2007 because it failed to include the singer’s youngest son, James Jr, and his (sometimes estranged) wife Tomi Rae Hynie. Brown’s will had not been updated since his son’s birth so it was unclear whether the omission was intentional or not.

After reclusive billionaire Howard Hughes died, it was discovered he made more than one will at a time. Melvin Earl Dummar, a Utah gas station attendant, added to the confusion by claiming to have received a will showing he was the heir. Dummar, who allegedly befriended Hughes in the Nevada desert in 1967, hired a wills attorney and took his battle to court, where it was discovered that he forged the will. The story later became the subject of the Academy Award winning film Melvin and Howard (1980).

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