What Is a Will?

Once a business owner decides to create an Estate plan and identifies the assets and liabilities that make up the estate, a will is the typical starting point. A will is a written declaration of an individual’s intentions for the disposition of property after death. The probate court will honor this plan as long as the individual:

• prepared and executed the will in accordance with all legal formalities
• was competent, not the victim of fraud, and not acting under duress
• was of legal age to make a will (most states set 18 as the minimum age)

The person responsible for carrying out the plan outlined in the will is called the executor or personal representative. It is important for an individual to select the executor carefully, choosing a person who is trustworthy, capable, and willing to serve in this capacity.

A will does not direct the disposition of all of a person’s property—some property passes outside the will, such as jointly held property, life insurance payable to a named beneficiary, or an IRA with a named beneficiary. Therefore, it’s important to remind clients that although a will serves a vital function, it is only one piece of the total estate planning picture.

The Purposes of a Will

In addition to providing a plan for the disposition of property, a will lets estate owners:

• minimize or avoid estate charges—taxes, administration expenses, and shrinkage of assets
• nominate a guardian for minor dependent children if there is no surviving parent
• bequeath specific assets (e.g., family heirlooms) to appropriate heirs
• make a bequest to charity
• nominate an executor or personal representative to carry out the terms of the will during the probate process
• grant the executor specific powers that are otherwise unavailable under state law (e.g., the power to continue operating the decedent’s business)
• make the best use of the unified credit and the unlimited charitable and marital deductions

• provide income for the care of a mentally or physically handicapped child, parent, or spouse
• describe how estate settlement costs are to be paid, so they are not charged against particular heirs or bequests

Legal Formalities

Ideally, an individual’s will should be printed and signed (or authorized) in accordance with state law. Most states require that two adults witness the execution of a will. If heirs later contest the will in court, the court may call on the witnesses to describe the testator’s state of mind and the actual circumstances surrounding the will’s execution. This may be necessary to prove that the testator was of sound mind, or to determine whether the testator was under duress, undue influence, or some type of fraud. If this can be proven in court, the judge may declare the will invalid.

Some states also allow oral wills (also called nuncupative wills) recited by the testator in front of witnesses during a final illness. If allowed by the state, an oral will must be promptly put into writing and filed with the probate court.

A holographic will is a will entirely in the testator’s own handwriting with no witness signatures. While some states accept this type of will, it has a capacity for causing problems. Often, the testator’s handwriting is illegible in parts, or the testator’s intentions remain unclear due to confusing or inconsistent language.

A will is a versatile estate planning tool because it is so easy to change to accommodate new circumstances. In fact, it’s a good idea for testators to review and update a will whenever they want to change beneficiaries, executors, guardians, or trustees, or after:

• a move to a new state
• a marriage or divorce
• the birth or adoption of a child or grandchild
• a major change in financial circumstances
• a change in the law that affects the testator

A testator can accomplish minor changes with a codicil—a legal document used to amend a will that has all the same legal formalities involved in establishing a will.

Revoking a Will

For global changes, the testator will want to revoke the old will and create a new one. To revoke a will, the testator can physically destroy the old will or simply execute a new will.

In some states, certain circumstances force a revocation of a previous will, such as:

• marriage
• divorce
• annulment
• the birth of a child

State laws that force revocation in the event of divorce often only revoke provisions in favor of the ex-spouse without revoking the entire will.

Family Protections

If a person dies intestate (without a will), the court will distribute all of that person’s property according to the state’s intestacy statutes. These rules are based solely on family relationships.

While one of the major benefits of a will is the testator’s freedom to decide how to dispose of assets, there are a few built-in protections for family members that restrict this freedom. These protections are based on the automatic “intestate shares” of the estate that family members receive under state intestacy laws. For example:

• If a spouse would receive less under the will than the intestate share, the spouse can “elect against the will” and take the larger intestate share of the estate.
• Similarly, children who are omitted from a will (usually children born after the will was executed or after the death of the testator) may receive their intestate share of the estate in some states.
• Adopted children normally take a child’s full intestate share from the estates of the adoptive parents and, in some states, from the estates of the natural (biological) parents.
• Illegitimate children usually take a child’s full intestate share of the mother’s estate, but only take a share of the father’s estate if the father has acknowledged the child as his, a court has ruled him to be the father, or the father married the mother after the child was born.

At Islamic Wills Trust Services we have a team of experienced attorneys who can help you set up an Islamic living trust tailored to your unique needs and circumstances. Contact us today to learn more about how we can assist you in protecting your assets for generations to come.

Schedule your free consultation in our offices in Maryland and Virginia in your house or online. We’re also available to meet on weekends and after working hours. You may schedule your consultation by calling us at 855-559-4557 or by emailing us at [email protected]. Appointments are typically scheduled two weeks in advance.