Wills are documents that determine what happens to a person’s property (both real and personal property) after their death. In addition to designating beneficiaries of property, wills can also:
- Nominate a personal representative (also called the “executor”) to administer the estate
- Nominate a guardian for minor children
- Establish a trust (called a “testamentary trust“)
- Traditional and time-tested.
- Clearest, strongest way to carry out testator’s intent.
- May be subject to costly will contests based on incapacity, fraud, faulty execution, or undue influence.
- May require costly probate process. (Probate is not always a “con.” In some situations, the thoroughness and finality is worth the hassle.)
- The testator must have the requisite capacity to make a will. This is called “testamentary capacity.” In the movies this is usually depicted with the phrase, “I, John Doe, being of sound mind and body,” but there are some specific requirements for testamentary capacity. The testator must:
- Be at least eighteen years old
- Know the nature and extent of his assets
- Know the “natural objects of his bounty.” This colorful phrase generally means that the testator must understand who his closest relatives are, but the meaning can vary based on the testator’s circumstances.
- The testator must make his will free of undue influence.
- The will must be:
- In writing
- Signed by the testator and two witnesses. It is best if these witnesses are both disinterested, meaning that they are not direct or indirect beneficiaries of the will’s provisions.
- (Although valid in most states, “holographic” wills, meaning those that are handwritten by the testator but not properly witnessed, are not valid in Washington; however, Washington courts will recognize a will that was validly made in another state.)
Did you know?
- A document that changes an existing will is called a “codicil.”
- Contrary to what you see on movies and TV, there is almost never a dramatic “reading ceremony” in the lawyer’s office where all the family members learn the contents of the will and what property they will get. In real life, most people disclose the contents of their wills to their family well before their death. Even when the will’s provisions are kept secret until death, what usually happens is the lawyer holding the will simply files it with the County Clerk, and from that point on the will is a matter of public record, for all to see. Burkhart and Burkhart typically mails copies of filed wills to named beneficiaries, as a courtesy.