What you need to know about wills
Most people likely know there are some basic documents they need for their estate plan. Those include a will, living wills or medical directives, durable powers of attorney for health care or property, and side letters. ❚ But what most people don’t realize is that the seemingly simplest of these documents – the will – isn’t as simple as it might sound. ❚ Here’s what John Scroggin, an attorney with the Georgia firm Scroggin & Co., says you need to know about a will. Question: What is a will?
Answer: Technically, a will is called a “Last Will and Testament,” a document signed with certain required formalities designed to assure the integrity of the disposition process, declare the heirs of the estate and name the persons who will manage the disposition process. A will is just one part of the estate planning process. It is important to note that the state laws governing estates vary widely.
Q: What is testamentary capacity?
A: It means having sufficient capacity to execute a will. Generally, all adults are presumed to have that capacity, and someone challenging the will has the burden of proof to show that the person lacked sufficient capacity. The standard for testamentary capacity is relatively low. For example, in an early court decision, it was noted: “(a) man may believe himself to be the supreme ruler of the universe and nevertheless make a perfectly sensible disposition of his property, and the courts will sustain it when it appears that his mania did not dictate its provisions.”
Q: What does it mean to die intestate?
A: Dying intestate means you passed away without having a valid will in place before your death.
Q: What are intestacy laws?
A: When you fail to indicate how you want your estate governed and disposition of assets to be handled, then state statutes and case law effectively make those decisions for you.
Q: Who administers the estate?
A: The decedent’s will generally names an executor or personal representative to handle the probate process. If the documents are silent, or the named parties are unable or unwilling to serve, state statutes will dictate the process for an appointment.
Q: What do people need to know about the various types of wills?
A: There are two worth noting: A holographic will is one that is self-written and fails to meet the statutory requirements of state law. In some states (Georgia, for example), failure to meet all statutory formalities in executing the will makes it unenforceable. States that permit holographic wills vary on the conditions that must be meet. A nuncupative will is an oral will. Most states do not recognize such wills as enforceable, but in some (North Carolina, for example) they may be enforceable if made proximate to the decedent’s death and if other conditions are satisfied.
Q: What is a codicil?
A: A codicil is an amendment of an existing will. With the digitization of documents, it is generally easier to just redraft the will with the proposed changes, assuming the client is willing to go back to the original drafter of the prior will.
Q: If I have changes I want to make to my will (e.g., remove my ex-wife as my estate administrator), can’t I just make the change on the original document?
A: Generally, handwritten changes to the original will are not legally enforceable. If the changes are substantial, they may result in the will being treated as revoked by the decedent.
Q: Anything else worth mentioning about the process?
A: There are plenty of unexpected nuances that non-lawyers are not aware of. For example:
❚ Assume you get divorced and remarry years later. It is your intent to have all of your assets pass to your children from your first marriage. You ex- amine your will and note that your new spouse is not named in your will, so you assume that the spouse cannot inherit from you. However, state laws generally provide that a “pretermitted spouse” (that is, a spouse not named in the will) is entitled to a share of the estate, unless the will expressly notes that they are not to inherit. But even where the spouse is disinherited by the will, every state (except Georgia) provides that a surviving spouse has the right to take a statutory share of the deceased spouse’s estate.
❚ Assume a person gets divorced and fails to change the beneficiary designations on their retirement plan from the ex-spouse. That failure could result in the former spouse being entitled to receive the decedent’s retirement plan assets upon their death.