A will is a document, created and executed in compliance with the law, that spells out exactly what someone wants done with his property after his death. Beneficiaries exist in many legal areas, but when a will is in play, the beneficiary is the party who receives something by the terms of the will. Those with questions about a specific will should seek legal advice.
Function of Will
Wills are documents that spell out what should be done with the will creator's assets after his death. The individual creates and signs the document during his life, and at death the will goes through a process called "probate." An individual known as the executor, designated in the will, finds the will and presents it to a probate court. The executor also has the responsibilities of finding and gathering all of the deceased's property, but before he can distribute that property according to the will, he must pay any debts and taxes owed by the deceased.
Requirements for Will
Each state has a body of law, typically known as a Probate Code, which spells out the requirements to create a valid will. In all jurisdictions, the will's creator must have signed the will and written the important provisions in her own handwriting. Except for certain specialized circumstances, each jurisdiction requires two or sometimes three people to witness the creator signing the will. These witnesses only meet the quota if they are "disinterested," meaning that the will doesn't leave them anything. At the moment the will's creator signs the will, she must have legal capacity, meaning sufficient mental capability to understand that she's signing a will, and that she has reached the age of 18. Some states allow exceptions to the majority age requirement in certain situations. The will also cannot result from use of fraud or duress.
A beneficiary is someone designated to receive property or other assets (known as "bequests") under the will. Valid beneficiaries may include individuals, organizations, families, or similar designable human parties. However, U.S. jurisdictions generally don't allow gifts to pets through wills. Even if all of the designated beneficiaries in the will are valid, a probate court may cut into their bequests to satisfy state law. For instance, most states have laws that reserve some share of the deceased's property for any surviving spouses and minor children.
Sometimes, the executor will find that one of the named beneficiaries of the will is deceased. If the will gives directions in the case of a dead beneficiary, probate courts will typically follow those directions. However, if there are no directions in the will, different states deal with the situation in different ways. Some states find the bequest "lapsed," meaning that it either returns to be divided with the rest of the estate, or goes to the heirs (the natural descendants of the deceased.)
- "Wills, Trusts and Estates (Seventh Edition)"; Jesse Dukeminier, Robert H. Sitkoff, James M. Lindgren and Stanley M. Johanson; 2005
- Lawyers.com: Grounds for Will Contests
Erika Johansen is a lifelong writer with a Master of Fine Arts from the Iowa Writers' Workshop and editorial experience in scholastic publication. She has written articles for various websites.