After the testator has died, a probate proceeding may be initiated in court to determine the validity of the will or wills that the testator may have created, i.e., which will satisfied the legal requirements, and to appoint an executor. If the will is ruled invalid in probate, then inheritance will occur under the laws of intestacy as if a will were never drafted. Often there is a time limit, usually 30 days, within which a will must be admitted to probate. Only an original will can be admitted to probate in the vast majority of jurisdictions even the most accurate photocopy will not suffice.
There is no legal requirement that a will be drawn up by a lawyer, although there are pitfalls into which home-made wills can fall. The person who makes a will is not available to explain him or herself, or to correct any technical deficiency or error in expression, when it comes into effect on that person's death, and so there is little room for mistake. A common error (for example) in the execution of home-made wills in England is to use a beneficiary (typically a spouse or other close family members) as a witness although this has the effect in law of disinheriting the witness regardless of the provisions of the will.
Some states recognize a holographic will, made out entirely in the testator's own hand (or, nowadays, typed in a word processor). Contrary to popular opinion, the unique aspect of a holographic will is less that it is written by the testator and more that it need not be witnessed. A minority of states even recognize the validity of nuncupative wills, which are expressed orally. In England, the formalities of wills are relaxed for soldiers who express their wishes on active service.
A will may not include a requirement that an heir commit an illegal, immoral, or other act against public policy as a condition of receipt. In community property jurisdictions, a will cannot be used to disinherit a surviving spouse, who is entitled to at least a portion of the testator's estate. In England, a will may disinherit a spouse, but close relations excluded from a will (including but not limited to spouses) may apply to the court for provision to be made for them at the court's discretion.
It is a good idea that the testator give his executor the power to pay debts, taxes, and administration expenses (probate, etc.). Warren Burger's will did not contain this, which wound up costing his estate thousands. This is not a consideration in English law, which provides that all such expenses will fall on the estate in any case.
A will may also be revoked by the execution of a new will. Most wills contain stock language that expressly revokes any wills that came before them, however, because normally a court will still attempt to read the wills together to the extent they are consistent.
In some jurisdictions, the complete revocation of a will automatically revives the next most recent will, while others hold that revocation leaves the testator with no will so that his or her heirs will instead inherit by intestate succession.
In England and Wales, marriage will automatically revoke a will as it is presumed that upon marriage, a testator will want to review the will. A statement in a will that it is made in contemplation of forthcoming marriage to a named person will override this. Divorce, conversely, will not revoke a will, but will have the effect that the former spouse is treated as if they had died before the testator and so will not benefit.
Before applying the doctrine, courts may require (with rare exceptions) that there have been an alternative plan of disposition of the property. That is, after revoking the prior will, the testator could have made an alternative plan of disposition. Such plan would show that the testator intended the revocation to result in the property going elsewhere, rather than just being a revoked disposition. Secondly, courts require either that the testator have recited his mistake in the terms of the revoking instrument, or that the mistake be established by clear and convincing evidence. For example, when the testator made the original revocation, he must have erroneously noted that he was revoking the gift "because the intended recipient has died" or "because I will enact a new will tomorrow."
The historical and social policy purposes of such statutes are to assure that the surviving spouse receives a statutorily set minimum amount of property from the decedent. Historically, these statutes were enacted to prevent the deceased spouse from leaving the survivor destitute, thereby shifting the burden of care to the social welfare system.
The Thellusson Will Case in England where the costs involved took the major part of the estate was fictionalised by Charles Dickens as Jarndyce and Jarndyce, and led to Parliament legislating against such accumulation of money for later distribution.
Though most people are aware they need a will, as many as 66% of Americans, according to Consumer Reports, don't have one. Among the notables who died without either a valid will or no will at all are Abraham Lincoln, Andrew Johnson, Ulysses S. Grant, Howard Hughes, Martin Luther King, Jr., Tupac Shakur, Kurt Cobain, Buddy Holly, Lenny Bruce, Billie Holiday, Marvin Gaye, Sam Cooke, Cass Elliot, Sonny Bono, Tiny Tim, Karl Marx and Pablo Picasso.
The shortest known legal will in history is that of Bimla Rishi of Delhi, India. His will, dated February 9, 1995, is written in Hindi, translating as "all to son" and consisting of just four characters. A close second is the will of Karl Tausch, whose will of January 19, 1967 is in Czech and consists solely of the phrase vše ženě "all to wife".
Advocates for gays and lesbians have pointed to the inheritance rights of spouses as desirable for same-sex couples as well, through same-sex marriage or civil unions. Opponents of such advocacy rebut this claim by pointing to the ability of same-sex couples to disperse their assets by will. Historically, courts have been more willing to strike down wills leaving property to a same-sex partner for reasons such as incapacity or undue influence. See, for example In Re Kaufmann's Will 20 A.D.2d 464, 247 N.Y.S.2d 664 (1964), aff'd, 15 N.Y.2d 825, 257 N.Y.S.2d 941, 205 N.E.2d 864 (1965)
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