A properly created will is used to distribute assets, name the executor of the estate, provide details for the powers you want the executor to have and more, depending on what you want the will to accomplish. Most importantly, you want to be sure your will is valid, as explained in a recent article “Estate Planning: A valid will” from Lake Country News.
There are times when an unhappy heir receives less than expected, or for whatever reason, the heir feels they have been shortchanged. If this results in litigation, the will must be not just be valid, but strong enough to withstand a legal challenge.
A will may only be executed by a person who is of sound mind at the time they sign the will, and who is signing the will without any kind of duress, menace, or undue influence. The law sometimes presumes the signature has been made under duress in certain situations, such as when a paid caregiver is the recipient of an unusually large gift. Incapacity or duress is a common reason for wills to be challenged.
A will may be valid, if it satisfies the estate laws of your state of residence. While there are instances when a holographic will, one that has been handwritten, may be accepted, it is more easily challenged than a will created and executed with an estate planning attorney.
The will must be signed by the person making the will, i.e., the testator, and depending upon the state, must be witnessed by one or two people at the same time. Your estate planning attorney will be familiar with the laws of your state. Those two witnesses must see the testator either signing the will or acknowledging the will in their presence. If you have a will in a state that requires one witness, but move to a state requiring two witnesses, your will may be deemed invalid.
Different states also have different requirements for accepting wills prepared in another state. Some states have reciprocity, whereas as long as the will aligns with the state’s law at the time it was executed, it is acceptable. Others are not so flexible.
As a result of the Covid pandemic, some states now permit witnessing documents to take place remotely, usually through a video platform like Zoom or Facetime. These rules vary from state to state, with some states ending the practice in 2021 and others restarting this method in 2022. Check with your estate planning attorney to learn if a will may be witnessed remotely.
When the will is filed with the court to begin the probate process, the court will examine the will to be sure it complies with the state’s law. Any assets outside of the will—i.e., trusts—are not subject to probate and are not considered part of the taxable estate. One of the reasons to have trusts is to remove the asset from the estate for tax purposes, but also to keep the asset private. Only the grantor, trustee and estate planning attorney know the trusts exist and what they contain.
Heirs who feel they have been shortchanged may not know about assets in trust, which is likely the reason the grantor had the trusts created in the first place.