Lost Wills

Sometimes, a family knows that a deceased relative made a will, but the will cannot be found. Missing wills raise many legal issues. The outcomes of these situations depend on the specific facts and circumstances, as well as on the law of the state in which the deceased resided. If the will is missing because the deceased attempted to revoke it, depending on state law, an earlier will or the state’s rules on interstate SUCCESSION would determine how to distribute the deceased’s estate. If the will is missing because it was destroyed in an explosion or fire, the probate court may accept a photocopy of the will. The court may also accept the deceased lawyer’s draft or computer file. In either of these cases, the court will require evidence that the deceased executed the original will according to state law.

Life Insurance

It is not a good idea to name a beneficiary for your insurance in your will. This adds an unnecessary level of administration and expense as insurance proceeds become caught up in the probate process. Because life insurance proceeds generally pass to your beneficiaries free of the claims of your creditors, passing insurance proceeds through your will may unnecessarily subject your life insurance proceeds to your estate’s debts. Currently, you may contact your insurance company to ask for a beneficiary form on which you name your life insurance beneficiaries. If your life insurance is part of your employer’s benefit plan, your employer may provide you with insurance beneficiary forms. With the forms from your insurance company or employer, you may name the beneficiaries of your choice and file the new beneficiary designation with the insurance company or with your employer. Do not forget to ask for written confirmation that the form was received and properly filed. In the event of your death, the insurance company would pay the insurance proceeds directly to the beneficiaries you have named without having your beneficiaries going through the delay, expense, and trouble of probate.


A major impetus for making a will is to provide for the care of minor children. If you have a minor child or children you may want to choose a guardian to serve in your place should you die before your children reach the age of majority. There are two basic types of legal guardians: a guardian of the person and a guardian of the estate of minor children, but these functions can be performed by one person. The guardian of the person is responsible for decisions about the health, education, and welfare of the minor child. The guardian of the estate is responsible for the child’s property and for managing finances for the minor child.

When one natural parent dies, generally the other natural parent is appointed as the guardian for minor children, whether or not the parents were married at the time. If someone besides a surviving natural parent of a minor child is named as guardian in a will, the surviving natural parent can contest that nomination. The court will then determine whether the appointment of the other parent as the guardian would be detrimental to the best interests of the minor child. Courts strongly prefer that children be placed in the guardianship of their natural parents whenever possible. It is very difficult from a legal standpoint to overcome this presumption. However, if both natural parents are deceased, it is important to name a guardian for minor children, to ensure the children (and their financial assets) will be cared for by someone the parents trust.

Dying Without a Will

If you die without having made a will (also known as dying “intestate”), the probate court will appoint a personal representative for your estate. This representative is frequently known as an “administrator.” The administrator will receive creditors’ claims against your estate, pay debts, and distribute your remaining property according to the laws of your state. There are many differences between dying TESTATE and dying INTESTATE. The main difference, however, is that an intestate estate is distributed to beneficiaries according to the distribution plan established by state law; a testate estate is distributed according to the decedent’s instructions provided in the decedent’s will. For more detailed information about INTESTACY, see the heading “Intestacy” in the Gale Encyclopedia of Everyday Law.



The effect of a DIVORCE on the legality or sufficiency of a will depends on your state’s law. In some states, a divorce DECREE will automatically revoke your entire will. In other states, a divorce will only revoke the provisions that would distribute assets to your former spouse, not the will itself. In either case, should you experience a divorce, you should review the property arrangements in your will. This is also true of other important documents, such as life insurance policies and bank accounts. This is such a fundamental principle that divorce courts frequently require litigants to address these issues as part of divorce decrees.


Can you disinherit your child? The answer is generally yes. To do so, you must explicitly state that you intend to disinherit that child in your will. If your child is a minor, the state laws typically provide some sort of allowance out of the assets of your estate to support your child until he or she reaches the age of majority.

Can you disinherit your spouse? The answer is generally no. But if you and your spouse waived the right to be included in each other’s estate in a prenuptial or postnuptial agreement, you may then entirely omit your spouse from taking anything under your will. In the absence of such an agreement, you can limit the amount your spouse will receive to a statutorily defined minimum. All states have laws that shield a surviving spouse from being completely cut off.

Typically, your surviving spouse could choose between the property you left to him or her in your will or a STATUTORY share set by state law. Depending on the state law where you reside, this spousal share is usually one-third or one-half of your estate. The rules for calculating the amount of the share differ remarkably from state to state. Additionally, in COMMUNITY PROPERTY states, the surviving spouse already owns half of the community property at the death of the other spouse.

The threat of will contest and the expense and delay they occasion prompts competent lawyers to encourage their clients to avoid completely cutting someone out. Instead, it may be advisable to leave the person a relatively small amount and put in an “in terrorum” clause. These clauses state that if the person contests the will, he will FORFEIT that small amount. The consequences of will contests are another important reason most people should avoid a do-it-yourself will. Lawyers are trained and experienced to prepare wills and will make sure the wording and EXECUTION is done according to the law. If it seems possible that someone may later claim that the testator lacked competence, the lawyer can produce qualified medical and other witnesses at the execution ceremony to ameliorate those claims.

Contesting or Challenging a Will

Will contests challenge the admissibility of wills in probate courts. It is a kind of LITIGATION that questions whether a will should be properly admitted by the court as EVIDENCE of a decedent’s wishes regarding the distribution of his estate, appointment of guardians for minor children, or other issues dealing with the decedent’s estate. One may not contest the validity of a will merely because that person does not like the will’s provisions. A will’s validity is not determined by one’s sense of “fairness” of the will’s contents. Nor is a will’s validity determined by how reasonable the will’s provisions appear nor on the timing of disbursements.

Despite the feelings of a decedent’s family or friends, a will is most likely to be challenged by someone claiming one of the following:

  • The will was not properly written, signed or witnessed, or did not meet the state’s formal requirements
  • The decedent lacked mental capacity at the time the will was executed
  • The decedent was a victim of fraud, force, or undue influence
  • The will is a forgery

If a will contest is successful, the entire document may be thrown out. Alternatively, the probate court may reject only the part of the will that was challenged. If the entire will is disallowed, the court will distribute the decedent’s property as if the person died without a will. If possible, the court may use a previous will, but such action will depend on state law and the facts and circumstances of the case.

If someone files an objection to your will or produces another will, a “will contest” has begun. Will contests are not uncommon, but few people actually win one. They can be very expensive and create lengthy delays in the distribution of an estate’s assets. Not just anyone can contest a will. A person must have legal “standing” to object to a will. What constitutes standing is determined by state law, but generally it means someone who either is a party mentioned in a will or perhaps should have been a party to the will based on a legal relationship to the decedent. For example, if a decedent revises his will and the later will is less favorable to someone than an earlier will, that person has standing. Someone may initiate a will contest to have a different person, bank, or TRUST COMPANY serve as the personal representative for an estate or serve as a trustee of trusts created by the will. Some of the most common challenges to wills come from potential heirs or beneficiaries who received less than they had anticipated.

Competency of a Will

Someone trying to have your will accepted for probate generally must establish that you were of sound mind and memory at the time you executed your will. Even if one becomes old, frail, and forgetful, it is difficult to get a court to regard a will as invalid. Generally, those who witnessed the will being signed will almost always say that the deceased was of sound mind, was aware of his surroundings, the day or date, who his family members were, and knew that he was signing a will. The burden then shifts to the person challenging the will to prove it should not be accepted for probate.

Courts maintain a strong presumption that a will is valid. Thus, it can be costly and difficult to prove that someone was mentally incompetent, made a mistake, or was subject to FRAUD, COERCION, DURESS, or undue influence when making and/or executing the will. Even if the testator suffers weakened mentality after the will was made has no bearing. The validity of the will is only called into question should an incompetent testator want to change the will at a later date

Changing a Will

The most common reasons to change your will after it has been executed include the following:

  • You get married or divorced
  • Your family increases through the birth or ADOPTION of child
  • There is a death of a family member or of a beneficiary
  • There are changes in the Federal Estate Tax laws or State Tax laws that may effect your estate
  • There is a substantial change in the value of your estate
  • You change the nature of your property holdings, which impacts your distribution plans
  • A potential guardian, executor, or TRUSTEEmoves away, dies, or refuses to serve in that capacity
  • Your children reach the AGE OF MAJORITY, or are old enough to manage financial matters on their own
  • You move to a different state
  • You need or want to eliminate gifts to certain people

To change your will, there are two basic choices, and professional assistance is in order for both. First, you can prepare and properly execute an entire new will that revokes the previous will. Second, you can prepare and properly execute a CODICIL to the will. A codicil is a separate document that adds to and/or replaces one or more provisions in an existing will. What makes the most sense for you will depend on the facts and circumstances. For example, if there is a new tax provision that favors provisions in existing wills, but not new wills, or there may be a question subsequently raised about your mental competence. In these cases, a codicil would generally be the best choice.

Codicils were used frequently in the past, but lawyers now use computer technologies that can quickly integrate any changes you want to make—even minor ones—into an entirely new will that is up to date. Because of the ease of making the changes, the fees charged to make these modifications are usually modest. Your lawyer may even suggest revisions to your will that take account of new laws, tax rules, and changes in your circumstances that you may have overlooked in your previous will. Regardless of the ease of making these changes, never try to make changes in your will on your own. If you write in the margins, add material, cross out words, lines, or sections of the original will you could possibly create some confusion or ambiguity and thereby invite unpleasant and protracted will contests.

Estate Planning

A well structured estate plan considers the lifetime needs of the individual goind the plan and the needs of his or her loved ones. In it fullest sense, an estate plan addresses an individual’s desire to:

  • provide for personal health care and manage personal affairs and assets if they become incapacitated
  • leave a legacy – of property as well as memories, life experiences, care and support for loved ones and special causes
  • manage and reduce federal and sate taxes fo the maximum amount of assets is transferred to heirs and beneficiaries

An estate plan is a set of legal documents or tools that provide insturctions for accomplishing the three main goals of an estate plan (described in the section “The Purpose of an Estate Plan”). These documents include legal and medical powers of attorney, a will, trusts, and beneficiary designations.

Estate planning involves the will, trusts, beneficiary designations, powers of appointment, property ownership (joint tenancy with rights of survivorship, tenancy in common, tenancy by the entirety), gift, and powers of attorney, specifically the durable financial power of attorney and the durable medical power of attorney. After widespread litigation and media coverage surrounding the Terri Schiavo case, many estate planningattorneys[weasel words] now advise clients to also create a living will. Specific final arrangements, such as whether to be buried or cremated, are also often part of the documents. More sophisticated estate plans may even cover deferring or decreasing estate taxes or winding up a business.

Many people confuse a living will with a durable medical power of attorney. A living will sets out directives concerning end of life decisions, whereas a durable power of attorney gives all medical decision making authority to an appointed individual upon incapacity, including end of life decisions. Some people have both a living will and a health care power of attorney. In some countries, legal trust lawyers and estate planning attorneys may require or prefer to have some form of accreditation or licensing, such as an MTI or CSEP designation

The tax code allows people to set up charitable remainder trusts and set up qualified personal residence trusts to own their personal residence yet leave it to their children without estate tax.

Because the United States tax code does not tax life insurance proceeds as income, a life insurance trust could be used to pay estate taxes. However, if the decedent holds any incidents of ownership like the ability to remove or change beneficiary, the proceeds will remain in his estate. For this reason, the trust vehicle is used to own the life insurance policy and it must be irrevocable to avoid inclusion in the estate.

Mediation serves as an alternative to a full-scale litigation to settle disputes. At a mediation, family members and beneficiaries discuss plans on transfer of assets. Because of the potential conflicts associated with blended families, step siblings, and multiple marriages, creating an estate plan through mediation allows people to confront the issues head-on and design a plan that will minimize the chance of future family conflict and meet their financial goals.