Wills – The Basics
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Common Characteristics of a Will
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Chances are that you have at least heard that a will is a legal document used when a person dies. This is true, but not the most accurate definition. A will is more clearly defined as a formalized document that provides for the distribution of a person’s assets upon the person’s death. There are different types of wills, but all wills carry some common characteristics.

Common Characteristics of a Will:

First, wills can only be made by a human being of legal age (i.e. 18 years or older). However, some states do allow a minor (i.e. person under 18 years old) to make a valid will if the minor is (i) married or (ii) in the military. But entities like corporations, partnerships, and limited liability companies can never have a will.

Second, wills are ambulatory – that is, wills do not become operative until the person dies. For example, if testator Tom makes a valid will today, that will has no legal effect until Tom actually dies. Therefore, Tom is free to change his will as many times as he wants up until his death. The beneficiaries of Tom’s will (i.e. those who plan to take under his will) have only the hope of receiving anything. In other words, the beneficiaries are entitled to nothing until the testator dies and the will is admitted to probate to prove the contents of the will.

Third, wills have to be admitted to the probate court to prove the contents of the will (often referred to as "probating the will"). The probate judge’s main job is to carry out the intent of the testator. The judge does this by making sure that all the formal requirements have been met, reading what the will says, and then listening to other evidence if necessary. It must be emphasized that a judge will NEVER add words to a will, but may delete portions of the will (or the whole will). However, usually the words of the will are carried out, as long as the words aren’t too ambiguous.

Fourth, wills are public records, as opposed to private documents. This means that anyone can successfully challenge a will if he or she can prove that the intent of the testator was for the challenger to be included in the will or receive more property or assets. (Please read "Challenging a Will" for more details.)

Next, we’ll cover the different types of wills.

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