Will Conveyance Process

The will normally names an executor or executrix to administer the terms of the will and dispose of the testator's remaining assets. If the will fails to name an executor, or if that executor is no longer capable or alive, the (probate) court may appoint an administrator.

When a person with a will dies, the will is filed with the probate court (normally where the deceased resided). The probate court will determine the will's validity, settle the estate's debts and distribute the remaining assets. To be completely valid, the will must meet six criteria:

  1. Legal age. The testator/testatrix must be of legal age, which is usually 18 in most states.
  2. Sound mind. The testator/testatrix must understand the purpose, terms and contents of the will, at the time the will is created and signed.
  3. Written and signed. The testator/testatrix must sign and date the will. The testator/testatrix may also be required to actually create the will, by script, handwriting or typing.
  4. Free will. The testator/testatrix may not be coerced to make the will, or complete under undue influence.
  5. Last will. The will should have proper language that cancels all previous wills and declares the official will as the last one made and the only one applicable.
  6. Witnessed. The testator/testatrix must sign the will with at least two witnesses. None of the witnesses can be beneficiaries or devisee of the will.

When a person dies without a will—also called intestate—the probate court appoint an administrator to oversee the settlement of the deceased's debts and disposition of the deceased's remaining assets.

There are three alternative types of wills:

  • Nuncupative. The nuncupative will is a verbal will created by person, who is usually near death. Such verbal wills are often not enforceable for real property, although they may be acceptable for personal property.
  • Holographic. The holographic will is one created by the testator and in the testator's script or handwriting. However, unlike a standard will the holographic will is not witnessed; and not all states recognize them as binding.
  • Codicil. Amendments and additions to a will are called codicils. They must fulfill the other requirements of a standard will, except for being the last will.

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