Testacy laws determine how the property of a person with a valid will in place is distributed upon the person’s death. A person with a valid will at the time of their death is said to have died “testate.” in legal terminology. In contrast, a person who passes away without leaving a valid will has died “intestate,” in legal terminology. If a person does not have a will when they pass away, then their estate passes according to the laws of intestacy in the state where they live.
Testacy laws are different in each state but are likely to be quite similar in many respects. They are applied by probate courts to determine the many different legal issues associated with wills, such as the following:
- If a will’s validity is challenged, then the court must determine whether it is valid or not.
- Clarifying the directions contained in the will, including how and to whom the property left by the person who prepared the will, the testator, is to be distributed.
- Disputes that arise, e.g., some person feels they were unintentionally left out of a will or that the distribution of property is unfair in light of certain circumstances, etc.
What Is a Testacy Proceeding?
A testacy proceeding is a formal court proceeding concerning a will. It takes place after an interested person or the personal representative or executor named in the will of a deceased person files a petition in probate court. The petition requests the court order the probate of the will. Or the petition might request the informal probate of a will.
Interested parties are those to whom the property is bequeathed and those to whom it is not. They may raise questions about the authenticity of a document that is claimed to be the person’s will. Or, there may be more than one version of the person’s will available, especially if they created different versions of their will at different points in their life.
In cases where there is more than one will or one will is challenged, a “testacy proceeding” may be required so the estate can be distributed. In a testacy proceeding, the court may address several petitions filed by people who are interested in the outcome, such as the following:
- A petition filed by the deceased person’s representative or executor, asking that the court probate (process) a will document.
- A petition to prevent informal probate processing of a will.
- A petition for an order stating that the deceased person did not have a valid will at the time of death if someone wants to contest the will.
As noted above, if a person passes away without a valid will, then the person would be found to have died intestate. The person’s estate would be distributed according to the intestacy laws of the state in which the person lived. Under the laws of intestacy in most states, spouses and children generally get priority and inherit an estate before distant relatives would receive the estate assets.
What if a Child Is Left Out of a Will?
If a child is left out of a will, i.e., disinherited, unexpectedly, and, perhaps, unintentionally or inappropriately, the child can contest the will. The child would have to show one of the following grounds for contesting the will:
- Not Explicit: The will would have to show that the child was not explicitly left out of the will. If the child is not mentioned, a court will likely determine that the child was left out inadvertently. Or, if a child was born after the will was made, a probate court might well determine that the child is entitled to its share of the assets in the parent’s estate. This may be one of the easiest grounds to prove that a parent’s will does not defeat a child’s right to inherit a share of the estate.
- However, if the will contains language that clearly and explicitly disinherits the child, the chance of a successful contest of the will is quite limited. The fact is that a parent can disinherit a child if they do it expressly and correctly in their will.
- Undue Influence or Duress: If a child thinks that their parent prepared and signed their while subject to undue influence or duress, they may be able to contest its validity successfully. “Undue Influence” means that a person was psychologically influenced by another person they thought they could trust but who may not have been trustworthy. ”Duress” means that the person who made a will was somehow coerced into making their will or did so while in fear of repercussion or possibly even bodily harm.
- Not of Sound Mind: Finally, if a person believes that either or both of their parents lacked capacity to make a will, e.g., because they were not of sound mind, the child may be able to convince the court that their will is invalid. The child would have to provide clear evidence to show that the will was signed by someone incapable of making sound decisions.
If a child could prove any of these assertions, they would have a chance of persuading a court to find the will invalid.
Can a Person Disinherit Their Spouse?
A spouse can agree in a pre-nuptial or post-nuptial agreement to take nothing from a spouse’s estate upon the spouses death, i.e., to be disinherited.
If a spouse does not agree to this, a person would have to look at other options. The laws vary from state to state. In a state with a community property system, such as California, a spouse has a legal right to one-half of the assets of their spouse’s estate to the extent that the assets were acquired during the marriage. In addition, a surviving spouse may have a claim for support for themselves and any children of the deceased spouse.
In common law or marital property states, a person may disinherit a spouse in their will. However, the surviving spouse may have a right to seek an inheritance by filing a Right of Election.
The Right of Election would entitle the spouse to approximately one-third to one-half of the estate assets acquired during the marriage. The exact percentage would depend on the state. If a state is not a community property state and has no Right of Election, then a spouse may disinherit their spouse in their will.
What Happens if a Will Is Not Valid?
Like testacy laws, intestacy laws vary from state to state, and an estate lawyer can help determine what exactly someone is entitled to when someone passes away without a will.
A court would have to sort out exactly how property should be distributed according to intestacy laws.
A person who unexpectedly dies or becomes incapacitated without a valid will loses their opportunity to draft a will and thus the opportunity to direct how their property should be distributed after death. Being without a valid will can result in a number of unintended outcomes, and the person’s property can be distributed in ways that the person did not intend and would not like.
If a person passes away without a will, there is a possibility that their estate will be distributed to a distant relative whom the deceased person did not even know. In rare situations where a person dies intestate a person’s entire estate could be distributed to the state if the court cannot locate any family relations. Distributing the estate to the state is a last resort, but it can happen.
Few of us want to send more money to the government after our demise. Creating a will can ensure that situations such as these are avoided. Even if a person has a close family, they can direct that their property be distributed to a close friend or a favorite charity.
Of course, being sure that a person drafts a valid will requires the expertise of an estates lawyer to ensure compliance with state law, especially for larger estates with higher net worth.
Do I Need a Lawyer for My Testacy Issue?
If you need help with a will or have any questions about your state’s testacy laws, you should speak with an estate lawyer immediately. An estate lawyer can draft a will that will be valid and provide representation in the event of a will dispute.
If you feel that a family member’s will is not valid and want to challenge its validity, you also want to consult an estate lawyer for guidance as to how to challenge it.
