Wills, Trusts, & Estates

Requirements for a will to be official

• In order for a will to be valid, the following are required:
  1. Capacity – anybody who wants to make a will must be at least 18 years of age and of sound mind. The sound mind requirement varies by state, however, if a person is capable of entering into a contract, it is safe to assume that he or she is capable of making a will.
  2. Signature – the testator must sign the will or have somebody else sign for him or her at the direction of the testator.
  3. Witnesses – the signing of the will must be witnessed by at least two people. The witnesses must be in the presence of the testator. The witnesses must also sign the will in each other’s presence.
• At 1LAW, we like to make the signing of the will a ceremony like event in which all of the required parties are present, and all of i’s are dotted and the t’s are crossed. With this method, we give you the peace of mind that comes with a properly executed document that will distribute the property of your estate as you wish.
• Will Revocation
• As mentioned above, a will can be revoked at any time. There are several methods that can be used to accomplish this task including:
  • Legal Revocation
    In certain circumstances, a will can be automatically revoked under applicable statute. For example, when a couple obtains a divorce, any and all provisions that provided anything for the former spouse are revoked. In some states a subsequent marriage can also affect will beneficiaries (i.e. the estate will shrink so that the subsequent spouse can take an intestate share). This does not prevent the validity of provisions in subsequent wills that apply to second spouses however.
  • Subsequent Children
    In some situations, children are born or adopted after the will is created. When another will is not created that provides for these children, the law refers to them as “Pretermitted Children” (which simply means that they were born/adopted subsequent to the creation of the will and that another will was not created to provide for them). In this case, the child not provided for gets an intestate share of the estate which lessens the share of the other beneficiaries.
  • Written Revocation
    A will can be revoked in writing by any subsequent instrument. If the will does not expressly revoke the prior will, both wills can generally be read together with only inconsistent provisions being revoked. It is common practice however to revoke any prior wills in writing somewhere in the content of the subsequent will. This can be done by the following methods:
    1. Other Acts by the Testator- Certain physical actions by the testator can revoke a will in whole or in part. In every state, a statute exists that provides that actions such as burning and tearing can revoke a will, but such actions must be made with such intent. Such revocation can be partial in nature (such as crossing provisions out with a pen). Also, wills that are lost or destroyed can be probated if a person can prove valid creation, the contents of the will, and proof that the testator did not intend to revoke the will.
    2. Revoked Will Revival- If the testator decides that he or she did not want to revoke the will after all, the testator must recreate the will.
    3. Dependent Relative Revocation- When a person revokes his or her will under a mistaken belief that some disposition method would be effective, and he or she would not have revoked the will if the mistake was not made, then such revocation will be deemed invalid and the original will, will be considered valid.
    4. Revoked Will Revival- If the testator decides that he or she did not want to revoke the will after all, the testator must recreate the will.
    5. Dependent Relative Revocation- When a person revokes his or her will under a mistaken belief that some disposition method would be effective, and he or she would not have revoked the will if the mistake was not made, then such revocation will be deemed invalid and the original will, will be considered valid.