The laws on wills and succession dictate that when a particular will is submitted for probate, it must pass two sets of tests — the test of form and the test of substance. The former will test the will according to the sufficiency of its form. If the said will doesn’t pass this test, it cannot proceed to the test of substance. This makes sense because if a will is not of the alleged testator, then its content won’t matter at all.
To know if a specific will passes these tests, it’s best to know the 4 basic types of wills.
What are wills?
Wills and testament carry the wishes of the deceased testator. Since death opens succession, it’s essential that the legal and designated heirs, as identified by the testator, are accorded their shares in the property. The people designated in the will may or may not be the legal heirs of the deceased.
However, the entire estate must be accounted for first to determine which part should be used to pay the creditors, which pertains to the legal heirs’ aliquot shares, and which part can be allocated to the legatee. Note that the legal heirs can never be deprived of their legitimacy, and only 50% of the free portion can be divided between the legal heir and legatees.
What are the four types of wills?
It’s essential to know the four basic types of wills because each one has different content and rules on the form to follow. If you want the probate of the will to prosper and to avoid any opportunity to question its legality, you need to know how to do it the right way.
If you think of the word ‘will,’ the picture of a written will that comes to mind is the true form of a simple will. Despite being simple, a will should express the intention of the testator. Therefore, it should contain the testator’s name, the name of the designated legal representative, the legatee or beneficiary, and the amount or subject of the will. If the legatees and devisees are minors, the will must also include their guardians’ names.
It’s also essential for the testator to affix his signature. If the testator is physically incapacitated to sign, it’s enough that an X mark is written. They can also designate someone to sign on their behalf. There should also be two witnesses to the execution of the will. And lastly, it should also be shown that the testator can transfer assets to a legatee or devisee.
Testamentary trust will
If your chosen legatees and devisees are minor at the time of the execution of the will, it’s best to execute a testamentary trust will instead. This will place your assets into a trust. The trustee will have the fiduciary obligation to act in the best interest of the trust beneficiaries.
The trustor can set conditions on the inheritance they left. The condition could be as simple as age or could be as complex as a circumstantial condition precedent. What’s clear is the beneficiaries couldn’t touch the inheritance unless the conditions in the trust were met. After the trustor’s death, the trust will undergo mandatory probate to determine the authenticity and validity of the trust and the legal capacity of the executor.
Also known as the ‘mirror will,’ this type of will is usually executed by both spouses, specifying that if either one of them passes away first, all the properties and assets shall be inherited by the surviving spouse. The essential parts and non-negotiable parts of this type of will are the following: names of the testators, executors, names of beneficiaries, and provisions of the will.
Note that the provisions of the joint will can no longer be altered after the death of one of the testators. This will is not as flexible as other wills, so the surviving spouse might have difficulty as their wishes might change.
Unlike the previous wills, the living will is not related to the partition of the testator’s assets post mortem. Instead, it grants the property owner to choose the types of medical treatment they can access should they become incapacitated. In this case, the testator can designate someone to make crucial decisions on their behalf.
As people would put it, death and taxes are the only things that are certain in this world. Its certainty allows people to plan their death during their lifetime. With the help of an estate attorney, you can ensure that your death will not only open the succession of your legal heirs. It also ensures your assets will be justly and equitably partitioned.
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