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WILLINFO.LGF
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1994-08-02
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WILL (LAW)
In law, a will is a written document that directs how a
person's property shall be distributed at death. Anyone who is
legally an adult, of sound mind, and not under the undue
influence of an interested party can make a valid will. It
must be signed by the person who makes it, and in most U.S.
states two or three other persons must also sign the will as
witnesses. Within limits, persons may dispose of their
property as they choose. State statutes, however, usually
stipulate that a surviving spouse cannot be disinherited.
The person who makes a will is called a testator, if a man, and
a testatrix, if a woman. In the will the maker appoints a
person to take care of his or her estate after death. That
person is called an executor (male) or an executrix (female).
When the maker dies, the will is taken to the appropriate
county office (called a PROBATE court, orphan's court, or
surrogate's court) to establish that it is a valid will,
properly executed. If the will does not specify an executor,
the court will appoint an administrator, who will perform the
same functions as an executor.
The assets of the deceased person must then be gathered
together by the executor, who is responsible for paying debts
and distributing what is left to the heirs in accordance with
the directions contained in the will. The executor usually
employs a lawyer to take care of the legal details and may be
required to make a formal accounting to the court before
carrying out the final distribution. A person who dies without
a valid will is said to die intestate. The person's property is then
distributed in accordance with a state statute for intestate
succession. If the decedent was single, the statute usually
provides for the property to go to the next of kin, in the following
order: parents or surviving parent, brothers and sisters, nephews and
nieces, grandparents, uncles and aunts, and cousins. If the
decedent has no relatives within the statutory limit, the
estate goes to the state itself, by a process called ESCHEAT.
If the intestate person was married, the surviving spouse
usually receives at least one-third of the entire estate, but
statutes differ and offspring always have rights.
Sometimes married persons who have all their assets in both
names think that they do not need a will because the survivor
will retain possession. However, if they should die
simultaneously, their property might go to relatives they did
not intend to include. A carefully drawn will may also reduce
the tax burden of an estate and avoid delays and expenses in
probate.