2 What is a will?A legal expression, usually in writing, directing how the decedent wishes his or her property to be distributed after death.Intestate - a person who dies when there is no willAll of the decedent’s property, called the estate, is controlled and distributed by a court-appointed person known as an administrator or administratrixTestate – a person who dies leaving a valid willThe maker of the will is called a testator (male) or textatrix (female)Personal representative who carries out the directions in the will is an executor (male) or executrix (female)
3 Function of WillsLiving Will – gives directives to physicians to the maker’s desires for use of life-support systems in case of terminal illness or vegetative stateOther names for Living WillDirective to PhysiciansDurable Power of Attorney uses a chosen or court-appointed individual the right to make health-care decisions, such as removal of life support
4 To be a valid Will: Testamentary intent Testamentary capacity Testator has clear intention and not pressured into signing the document and should not be mislead into thinking it is another documentTestamentary capacityTestator must have mental clearness to knowKind and extent of property in the estateThe recipients who stand to benefitTestator knows he or she is making arrangements to dispose of property after their deathTestator must be over the age of 18Will must be signed at the end and witnessed by at least two adult witnesses who will not inherit under the will
5 Changing a WillCan be changed or canceled any time during the maker’s lifeMarriage, divorce, the birth of children, and other significant changes in a person’s lifeChanges made using a codicilA formal, written, and witnessed amendmentSame formalities as a willExample**
6 Special Types of Wills Holographic Will Nuncupative Will (Oral Will) Valid even without witnessesWritten in decedent’s own handSigned by the decedentNot witnessedNuncupative Will (Oral Will)Proclaimed during the maker’s last illnessService personnel on active dutyWill must be witnessed and reduced to writingLimited to controlling the distribution of personal property
7 Revocation of a Will Desire of the testator Destroying or defacing the physical copyMarriage of the makerBirth or adoption of a childWritten revocation in a later will
8 Procedure for Distribution of Will Proof of deathDeath CertificateOfficial notification of death from an armed serviceTestimony of the deceased’s presence in a disaster that resulted in unidentifiable or irretrievable bodies (judge issues a declaration of death)Five or seven years of absence to be declared dead (Enoch Arden Laws)Assembling, preserving, inventorying and appraising the assets of the estate and collecting debts owed to itGiving public notice of the estate to creditors (6 months)Paying valid claims against the estateDistributing the remaining property according to the will or statute
9 Intestate Distribution No spouse, but one or more children surviving, the children inherit equal share in real and personal propertyWith spouse and one or more children or grandchildren surviving, the spouse gets one- half of the real and personal property and children share equally in the remainder. If a child is deceased but has surviving children, those children share equally in the deceased child’s share.
10 Intestate Distribution - continued With a spouse and no children or grandchildren surviving, the spouse gets one half of the real and personal property and the deceased’s parents are not alive, the deceased’s brothers and sisters received equal shares in the remainder.No spouse, no children, and no grandchildren surviving, the deceased’s parents each receive one-half of the real and personal property. If parents are deceased, brothers and sisters of the deceased share equally.
11 Testate DistributionPer capita distribution – Living lineal descendents split the property equally, be they children, grandchildren, or even further down the lineal treePer stirpes distribution – Lineal descendants split equally what a deceased parent would have received but receive nothing if the parent still livesNO INHERITORSIf there are no inheritors, the property of the deceased reverts to the state (ESCHEATS)