A will is a legal document which an individual drafts in order to outline how they want their property to be disbursed when they pass away. There are several different types of wills which individuals can use.
The most common types of wills which are available include:
- Self-proving wills;
- Holographic wills; and
- Oral wills.
A self-proving will is a will which has been witnessed and signed using all of the required formalities which are required by the state in which the creator of the will resides. A self-proving will is the most commonly used type of will.
A holographic will is a will which is handwritten without a witness present. It is important to be aware that most states will not accept this type of will as valid and legally binding and only under specific, limited circumstances.
An oral will is a will which is communicated orally and not written by the individual who is wishing to distribute their estate. An oral will is recognized only in a few states and only under certain circumstances.
Each of the different types of will have their own criteria for being valid and legally binding. Generally, the requirements which must be met by the individual seeking to create a valid will include:
- Being of sound mind, which includes being eighteen years of age and knowing that they are drafting a will;
- Expressly stating that the document is the individual’s will;
- Signing and date the will;
- Being signed by witnesses. State laws differ regarding how many witnesses must be present.
- Further, the majority of states require that the witnesses will not inherit anything from the will. The witnesses should sign the will in the physical presence of the will’s creator, and the witnesses should sign the will at the same time;
- Having one substantive provision. This could include:
- appointing a guardian for any minor children;
- listing who is to inherit specific items; and
- stating what happens to any remaining property not specifically mentioned in the will; and
- Appointing an executor.
What Happens if I Die Without Creating a Will?
If an individual passes away without creating a will, they will be considered to have died intestate. Each state has different rules regarding how property is distributed interstate.
One common intestacy distribution scheme is that an individual’s property will be divided equally among surviving family members at the first generational level. This means that an individual’s spouse or children may not receive property in accordance with their wishes.
Because of this, it is important for individuals to create an estate plan which outlines how they want their property distributed upon their death.
What is an Executor of a Will?
An executor of a will is an individual who is appointed to oversee the distribution of an individual’s estate upon their passing. This individual is typically named in a will by the creator of the will, also called the testator.
The executor, if possible, should be an individual who is close to the testator and is familiar with their intentions. In addition, an executor should be trustworthy with handling the testator’s will.
There may be one executor or there may be multiple individuals who are named as executors in order to ensure that the estate’s distribution occurs as outlined by the testator. A potential executor could include:
- A relative;
- A friend;
- An attorney;
- An accountant; or
- Another professional who is contracted by the testator.
The main requirement for an executor is that they are at least 18 years of age and they cannot have been convicted of a felony. There are some states that have specific requirements regarding who may be named as an executor.
The testator, however, has freedom to choose who they want to appoint as the executor of their will. As long as there are not clear indications that the proposed executor is mentally incompetent or presents a threat to the estate, the named individual will be granted the position of executor.
It is important to note that any individual who is named an executor in a will is not required to accept the responsibility. That individual has the right and the freedom to reject the role of executor.
In addition, an individual who has previously agreed to be the executor of the will may decide to resign at any time. If this occurs and the will has an alternate or additional executor named, that individual will take over.
In situations where there is not an alternative executor named, the court will appoint another individual to fill the role.
What Are Some Executor Duties and Responsibilities?
As previously noted, the executor of a will is responsible for distributing the estate of the decedent. The duties of the executor are mostly administrative.
The duties begin at the time of the death of the testator and end once the assets of the estate have been distributed and all bills and taxes have been paid. As part of their duties, an executor may be required to:
- Handle accounts or set up accounts in connection with a decedent’s financial assets;
- Pay a valid creditor, such as a bank
- Pay all applicable taxes;
- Pay off any outstanding debts, such as property taxes;
- Notify Social Security as well as other agencies and companies of the individual’s death;
- Cancel credit cards;
- Distribute property in accordance with the decedent’s final wishes;
- Regulate specific distribution instructions, including certain conditions which need to be met prior to property being transferred; and
- Make a court appearance as needed.
The duties and responsibilities of the executor will depend upon many factors, including the size of the estate and any specific state laws. The executor of a will is mainly responsible for taking care of the distribution of the property of the estate and paying debts and taxes.
The executor may be required to locate the assets of the testator prior to overseeing their distribution as well as find and contact beneficiaries. In addition, an executor will likely be responsible for filing the will in the appropriate probate court.
In most cases, an executor will assume the role without hoping to be paid for their services out of duty and respect to the decedent. The executor, however, does have a legal right to be compensated, if they so choose.
Every state has its own specific rules regarding how an executor is to be paid. These rules are often based upon factors such as the value of the decedent’s estate as well as what the probate court deems is a reasonable value for the services and time of the executor.
Do I Need an Attorney for Help with Will Issues?
It is essential to have an estate planning attorney for any issues, questions, or concerns you may have related to a will. If an executor breaches their duties, they may be required to take legal action against them.
In these types of cases, a beneficiary or another interested individual may petition the court to remove the executor. In serious cases, an executor may be required to pay damages if their negligence or actions cause another party to suffer losses.
If you have been appointed to serve as an executor or you have a legal issue related to a will’s executor and you are a beneficiary or an interested party, your attorney can inform you of your rights and represent you in court if you have to appear.
