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Five Major Things to Know When Making a Will

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The intent is the primary objective when construing your will.  The intent of the testator is the guiding factor.  A judge will typically follow the intent of the testator as long as the testator's intent does not conflict with Public Policy of with the law.  The testator's intent should be construed from the language of the will itself.  The words used in the will are the words that will allow for the intent of the testator to be used.  The testator should seek the assistance of legal counsel in putting those words together, so that the words are not construed against the wishes of the testator.

The emphasis of words is so important, because if the testator's words are confusing or if there is silence on a particular question inthe will, then the Judge typically will construe things in a way in which the testator may not have meant.  We shall examine Five Areas in which the testator must be clear in his construction.

First, and Number One, the Testator and the attorney should work together in providing words which allow for the validity of the will.  Typically, words which allow for estates to vest ( meaning allow for estates to change hands), would allow for validity.

Second: the Testator and the Attorney must be aware of the intestacy laws of the state in which they are drafting the will.  If language works against intestacy laws, then the language must be plain. For example, a simple progress of intestacy laws allows for the surving spouse, as the closest family member, to receive usually the remaining estate.  If that is not the desire of the testator, then the language must be clear, and should note that the language of the will is moving away from the existing intestacy laws of the state in which the instrument is drafted.

Third: The testator should construe the language of the will such that all the property of the estate is accounted for, and that all the debts of the estate are articulated as well. The Court will tend to want to dispose of the property effectively, and not leave the property to fall into intestate laws.  The idea of intestate laws are those laws which allow for the property to follow a pre-arranged default position which the State allows for through its own intestacy laws.  This should not happen with a properly constructed will.

Fourth:  The testator is expected to know which technical and key legal terms have to be included in a will.  Signature requirements are different state to state.  Holographic will requirements are different state to state.  If those requirements are not present ,or if they are not available in the will, the Court presumes that the testator through seeking legal counsel knew the technical language, and meant to not include it, or use it in a specific way, and will not read that the technical language was to be used in any type of lay articulation.

Fifth:  The testator must articulate all the potential beneficiaries,and articulate why they are not including other beneficiaries.  Again, this allows for clarity in the instrument.  The instrument must comply with wishes of the testator, as well as anticipating problems that may be forseen at the time of the Probate proceeding.  Also, it is important to remember that the will itself does not prevent a Probate proceeding.  The will allows for the Probate proceeding to be easier, but it does not prevent it in it's entirety, and that is crucial to construction of the instrument.

Discussing the specifics of the testator's estate and discussing the specifics of the will with an attorney  cannot be understated.  One can draft a will from a general format, and then have an attorney review the draft, but the instrument must stand the test the time, and fit the specifics law of the testator's state.  The best person suited to assist with that is indeed an attorney, a professional attorney-at-law.

Craig Cunningham is a published author in the areas of family and criminal law.  In addition to being an attorney, he is also a professor and will educate his clients regarding their case and the law. Clients are able to reach him through several outlets such as, email, cell phone, office line and fax. He will never keep his clients in the dark. With any new developments, he will definitely keep clients informed. For more information please visit at www.cunninghamlaw.cc

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