What is a Will?

A document in which a person sets forth the disposition of his assets upon his death.  A Will has no effect until the death of the Testator.

What is the Purpose of a Will?

  • To dispose of property as the Testator wishes;
  • To avoid intestacy;
  • To allow for more efficient and less expensive administration of decedent’s estate;
  • To avoid guardianship hearings for minors and incompetents; and
  • State and Federal estate tax planning.

What are the requirements of a Will?

  • Publication by Testator;
  • Testamentary intent must be shown in the instrument;
  • Testator must have capacity:
    • 18 years of age; and
    • ¬†Testator of sound mind at the time of signing Will.
      • Sufficient ability by the Testator to understand the business in which he is engaged;
      • Sufficient ability by the Testator to understand the effect of his making a Will;
      • The capacity of the Testator to know the objects of his bounty;
      • The capacity of the Testator to understand the general nature and extent of his property; and
      • The Testator must have memory sufficient to collect in his mind the elements of the business to be transacted and to hold them long enough to perceive, at least their obvious relation to each other, and to be able to form a reasonable judgment as to them.

Testamentary Statutory Formalities Required.

The execution of a Will, other than a holographic or oral Will, must be by the signature of the Testator and of at least two (2) witnesses as follows:

  • The Testator shall signify to the attesting witnesses that the instrument is his Will and either: himself sign; acknowledge his signature already made; or at the direction and in his presence have someone else sign his name for him; and
  • In any of the acts described in item (1) must be done in the presence of two (2) or more attesting witnesses.
    • The attesting witnesses must sign in the presence of the testator and in the presence of each other.
    • An interested witness will not invalidate a Will, but the interested witness’ devise will be forfeited to the extent that such amount exceeds what he would have received had the Testator died intestate unless two other disinterested persons also attest the Will.