Business & Law Chapter 40

Decedent

The person who died

Testate

The person who died had a will

Heirs

The people who will receive the benefits

Testator

The person writing the will

Holographic Will

Written entirely in handwriting of testator and does not need witnesses

Codicil

An amendment to a will written on its own piece of paper - must follow all requirements of a will.

Executor

A person who will distribute benefits - the person who carries out the wishes in a will

Probate

Validates the will

Intestate

The deceased did not have a will

The general purpose of a will

Tells who the administrator of the will is - Who will receive which benefits - How much they will receive - Other circumstances (Guardian of children &/or Special conditions that must be met)

The elements that must be present for someone to write a valid will

Must be 18 years old to create one - Must be of sound mind - Must not involve undue influence (should be of your own free will)

The legal requirements of a will in order for it to be binding

It must be in writing to be legally binding, Must be properly signed, and Signature Properly Witnessed

Must be in writing to be legally binding, meaning…

Handwritten or computer generated - Must be clear and in proper legal form

Must be properly signed, meaning…

Must have a witness - Should be a signature although a mark representing their signature can be allowed - Others can sign in special situations (cannot write or paralyzed)

Signature Properly Witnessed, meaning…

Usually need 2 witnesses - (all 50 states) maybe even 3 - Witnesses must sign in presence of the testator - Holographic Will (no witnesses) - Original will should be given to executor, put in a safe, or given to the attorney who wrote it.

Changing a will

The best is to write a new one - If it is a minor change then you can change it with a codicil

Revoking a will

Burn or tear the original - Create a new will (should state that any previous wills are void) - Write “Revoked” across the old will- Some states stipulate that a change in marriage will revoke the will

Tasks that an executor must complete

File will for probate, Gathers all assets, Pays all bills and taxes, and Pays out benefits that remain

The two main things that can happen during the probate process

Potential heirs can contest it - Creditors can file claims

What happens to a person’s estate if they are intestate?

The court will appoint an administrator of the estate - Administrator settles the estate according to the laws of the state (not family wishes)

Distribution of intestate property

1/3 to 1/2 goes to the spouse - The rest goes to the children (if a child already died, that portion goes to the grandchildren (children of the dead child)) - Adopted Children (treated as naturally born to the adoptive parents (they are not heirs to their natural parents))

Heirs protection in a will

A spouse cannot be disinherited from a will by the deceased spouse (unless divorced) - Children who are unintentionally omitted from a will have a right to their share - They can be omitted if specifically stated in a will (only if they aren’t a minor - if a minor, doesn’t matter)