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What is a Will?
A will is a legal instrument by which the person making (executing) the will (called the "testator") directs how and to whom his/her property is to pass upon death. A will is said to be "ambulatory." That is, it only takes effect upon the death of the testator. Consequently, the testator can change or revoke his/her will any time prior to death.
While laws may differ from state to state, there are four requirements that are generally recognized as essential to a valid will.
- The testator must have had testamentary intent when the will was executed (signed);
- The testator must have had the requisite testamentary capacity when the will was executed (signed);
- The execution (signing) of the will must have been free of fraud, duress, undue influence and mistake;
- The will must have been executed (signed) in conformity with state law requirements - this is often referred to as "due execution."
How is a Will Made?
A will is a legal instrument and therefore usually prepared by an attorney. The attorney will meet with the client, discuss the client's intentions, answer the client's questions, and then prepare a will that reflects the client's wishes. The will is then reviewed with the client to make sure it reflects the client's wishes. Once finalized, the will is then "executed" by the client. This means that the client signs the will in accordance with all legal requirements - the most common of which is signing the will in front of two or more witnesses.
Types of Wills
A will is a will is a will… Not really. A will is often characterized by how it is made and/or for what purpose it is made. Consequently, there are recognized "types" of wills, These include:
- "Noncupative" will - an oral will
- "Oral" will - a will that is made orally by declaring one's wishes to another. Few states recognize the validity of an oral will.
- "Holographic" will - a will that was hand-written by the Testator.
- "Living" will - this generally refers to an "Advance Directive" which is a document that sets forth the medical care a person desires if he/she is in the last stages of a terminal illness or in a persistent vegetative state;
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