Wills are legal estate planning instruments that allow for the distribution of an individual’s property, called the testator. The distribution of property may be to an individual or to an entity, such as a charity.
Trusts are created by individuals who own property. The trustee is the individual who holds legal title to the property that is held in the trust.
There are many different types of documents that are necessary to create wills and trusts, including, but not limited to:
- Document 1: Birth or death certificates – These documents serve as identification as well as proof that an individual, such as the testator, has passed away.
- Document 2: Marriage licenses or divorce certificates – These documents show the status of relevant marriages or divorces.
- Document 3: Deeds to properties – These show who owns what properties.
- Document 4: Mortgage information – Mortgage information shows who is responsible for the payments.
- Document 5: Insurance policy information – These documents outline who the designated beneficiaries are on each insurance policy.
Other documents that are helpful:
- Document 6: Lists of all bank accounts – This includes the locations of the accounts as well as the account numbers.
- Document 7: Investment portfolio – This includes locations and accounts numbers.
- Document 8: Funeral plans and burial plot information – This includes information on the wishes of the testator.
- Document 9: A list of relevant parties – This includes names, phone numbers, emails, firms, addresses for:
- Lawyers;
- Insurance agents;
- CPA or accountants;
- Bankers; and
- Financial advisors.
How Will This Evidence Make My Wills and Trusts Case Stronger?
An individual creates a will and a trust to ensure that their wishes are carried out after they pass away. This may include wishes to care for a spouse, children, or other family members.
Although an individual can draft their own will and there are numerous online websites that advertise quick will making, it is always best to have an attorney draft a will. Each state has different rules that govern wills and what makes them valid.
If an individual does not follow all of the rules of their state when drafting their will, they risk disputes arising and their wishes not being carried out. If a dispute arises related to an individual’s will, it can take years to resolve and prevent beneficiaries from obtaining their inheritance for years, if they are able to at all.
There are certain requirements for wills to be legal and enforceable as well as criteria that must be met, which include, but may not be limited to:
- The testator has to have testamentary capacity;
- The testator must have reached the age of majority for their state, typically 18 years old;
- The testator must sign and date their will; and
- The actual document has to be labeled as a will;
- An example of this would be to title the document, “Last Will and Testament.”
Because wills contain instructions for how to handle a testator’s property and assets upon their death, a will should also contain information such as:
- A description of the decedent’s estate and property;
- When the assets and property are to be distributed; and
- The name of each of the beneficiaries and what they are supposed to inherit.
Disputes involving wills often arise when one of the beneficiaries believes they are being cheated out of what they believed they were entitled to. A dispute may also arise if the will does not contain clear instructions or contains vague language.
Will disputes arise when one individual challenges one or more of the provisions that are contained in the will. If a will dispute does arise, there are certain types of evidence that a party can use to support their claim, such as:
- Voice recording court evidence;
- Video evidence; and
- Handwriting evidence in court.
An individual’s attorney will advise them how to acquire evidence in wills and trusts. The best way to avoid will disputes is to have an attorney draft the will, as they will know how to use clear and descriptive language to avoid any future issues.
How to File Evidence in Court for a Wills and Trusts Case
Even though it is possible for an individual to draft their own will and handle a will dispute themselves, their chances of success will likely be low. The best way to avoid any issues and have to present any evidence in court in a will dispute case is to have an attorney draft a valid, enforceable, and clearly written will for an individual.
If an individual finds themselves involved in a will dispute, it is also important to have legal representation. Their attorney will know the laws of the state regarding will disputes and how to best present evidence to the court in support of their claim.
There are several common grounds for disputing wills, which may include, but may not be limited to:
- An individual who believes that they asset or property they received through the will’s distribution was not actually what they were entitled to, whether in amount or type;
- The location of the testator’s death is unclear, as the state in which an individual dies can affect beneficiary rights;
- A beneficiary passes away during the probate process;
- A beneficiary dies before the testator;
- One or more items that were owned by the testator at the time of their death are not accounted for in the will; and
- One or more items that were supposed to be distributed to a beneficiary does not physically exist at the time the testator passes away.
These types of disputes are handled in probate court. An attorney is best equipped to present evidence to the court that shows, for example, that a beneficiary is entitled to certain property.
Generally, when an action is filed in probate court, the following information and evidence will be required:
- Factual information involving the dispute or contest;
- Copies of the decedent’s valid will or other estate documents;
- A list of all parties who may be involved in the distribution of the estate;
- A list of the beneficiaries affected;
- A list of all of the the property that is involved in the dispute;
- Any outstanding debts or claims related to the decedent’s estate; and
- A request for what the individual wishes the court to accomplish.
What If This Is Not Accepted by the Courts as Evidence?
Evidentiary issues are governed by numerous complex rules of evidence that only lawyers are trained to know how to follow. Many of these rules also have exceptions that attorneys will be aware of and know how to apply in court.
There may be instances where certain evidence is excluded by a court for various reasons. Sometimes, the other side will petition the court to have evidence excluded.
Other times, one side will make an argument in court to exclude evidence, such as hearsay evidence. An experienced lawyer will be aware of the exceptions to hearsay rules and be able to argue for the admissibility of the evidence.
An attorney will be prepared to argue against any evidentiary exclusions. In addition, an attorney will be prepared to present alternate evidence if a piece of evidence is excluded.
How Can a Lawyer Help Me With My Evidence?
If you are interested in drafting your will or trust, it is essential to have the assistance of a will lawyer. Your lawyer will advise you what document and evidence you will need to ensure that your will is valid and enforceable in court and to avoid future disputes.
When your attorney creates your will documents, it helps ensure that they comply with the laws in your state and will be valid when the time comes to transfer your property to your loved ones.
