There is a Will. What now?

Passing away with a valid Will leaves your family in a very good position. A well-drafted Will should clearly describe your wishes, and leave clear instructions about how your estate should be managed after you pass away. This makes it very easy for your estate’s Executor to manage everything, including paying off any debts that you may have left, and distributing any assets that you may have left.

You may have noticed the emphasis on the word “valid” in the previous paragraph. Why? If a Will is not valid, then there might as well not be any Will at all. In that case, it becomes much more complicated and expensive to manage the affairs of the estate. It is still doable, but is isn’t ideal.

How, then, do we determine the validity of a Will? There are a variety of factors that may contribute to a Will’s validity. To name a few:

  • The Will must be signed by the Testator (the owner of the Will).
  • The Testator must understand what he or she is signing.
  • The Testator must be of sound mind.
  • The Testator must not be under any improper influence.
  • The Testator must be of proper age.
  • The Will must be witnessed by disinterested witnesses who also satisfy the above competence requirements.

Different Wills present different scenarios, and, sometimes (though rarely), a Will might still be enforceable for probate purposes even if some of the above requirements are not perfectly met. However, it becomes much more challenging to probate a Will in those cases. Nevertheless, even if you think a Will is not valid, you should still never throw it away. Always have your attorney review it to see if it is valid for probate purposes—it might still work.

In addition to those, there are literally thousands of other items that contribute to a properly-drafted Will, depending on the unique circumstances that an estate presents. For example, in some cases, a Contingent Trust might be necessary. In other cases, advanced tax planning might be necessary in tandem with other estate plan documents such as a Credit Shelter Trust.

In summary, there are a variety of items that contribute to, or take away from, a Will’s validity. It is always worth reviewing a Will with an attorney to determine whether a Will is legally-valid and enforceable at probate. If a Will is invalid, or has other problems, it is important to discuss other options for how to manage the estate and distribute its assets.

Ultimately, if a family member left a Will, probate will likely be quite straightforward.