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A will is the legal instrument that permits a person, the testator, to make decisions on how his estate will be managed and distributed after his death. At Common Law, an instrument disposing of Personal Property was called a "testament," whereas a will disposed of real property. Over time the distinction has disappeared so that a will, sometimes called a "last will and testament," disposes of both real and personal property.
If a person does not leave a will, or the will is declared invalid, the person will have died intestate, resulting in the distribution of the estate according to the laws of Descent and Distribution of the state in which the person resided. Because of the importance of a will, the law requires it to have certain elements to be valid. Apart from these elements, a will may be ruled invalid if the testator made the will as the result of undue influence, fraud, or mistake.
A will serves a variety of important purposes. It enables a person to select his heirs rather than allowing the state laws of descent and distribution to choose the heirs, who, although blood relatives, might be people the testator dislikes or with whom he is unacquainted. A will allows a person to decide which individual could best serve as the executor of his estate, distributing the property fairly to the beneficiaries while protecting their interests, rather than allowing a court to appoint a stranger to serve as administrator. A will safeguards a person's right to select an individual to serve as guardian to raise his young children in the event of his death.
Some states have statutes that recognize certain kinds of wills that are executed with less formality than ordinary wills, but only when the wills are made under circumstances that reduce the possibility of fraud.
Holographic Wills A holographic will is completely written and signed in the handwriting of the testator, such as a letter that specifically discusses his intended distribution of the estate after his death. Many states do not recognize the validity of holographic wills, and those that do require that the formalities of execution be followed.
Nuncupative Wills A nuncupative will is an oral will. Most states do not recognize the validity of such wills because of the greater likelihood of fraud, but those that do impose certain requirements. The will must be made during the testator's last sickness or in expectation of imminent death. The testator must indicate to the witnesses that he wants them to witness his oral will. Such a will can dispose of only personal, not real, property.
Soldiers' and Sailors' Wills Several states have laws that relax the execution requirements for wills made by soldiers and sailors while on active military duty or at sea. In these situations a testator's oral or handwritten will is capable of passing personal property. Where such wills are recognized, statutes often stipulate that they are valid for only a certain period of time after the testator has left the service. In other instances, however, the will remains valid.
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