A will or the agreement is a legal document used by a person, the inheritor, expressed his wishes on how their property will be distributed at the time of death, and named one or more persons, executors, to managing the estate to its final distribution. For a property devolution that is not abandoned by desire, see inheritance and intimacy.
Although it is sometimes assumed that the "will" is historically limited to real property, while the "testament" applies only to the disposition of private property (thus raising the popular title of the document as "Last Will and Testament"), historical records indicate that these terms has been used interchangeably. Thus, the word "will" applies to both private and real property. A will also can create an effective will of testament only after the death of the testator.
Video Will and testament
History
Around the world, land disposal is a matter of social custom. According to Plutarch, the will was written by Solon. Originally it was a device intended solely for men who died without an heir.
The English phrase "will and testament" comes from a period in English law when Old English and French Law are used side by side for maximum clarity. Other such legal propositions include "breaking and entering" and "peace and quiet".
Maps Will and testament
Freedom of disposition
The conception of freedom of disposition by the will, known as in modern England and the United States, are both generally considered the general legal system, not at all universal. In fact, complete freedom is an exception rather than a rule. The civil law system often limits the possibility of disposal; see for example "Forced inheritance".
Supporters for gays and lesbians have shown the right of inheritance of the desired couple to same-sex couples as well, through same-sex marriage or civil union. Opponents of the advocacy refute this claim by pointing to the ability of same-sex couples to disperse their assets with a will. Historically, however, it was observed that "[e] ven if same-sex partners execute a will, there is a risk that the victim will face prejudice in court when the dissatisfied heir challenges the will", with the court more willing to drop will leave the property to fellow couples types for reasons such as incompetence or undue influence.
Type of will
Types of wills generally include:
- nuncupative (non-culpatory) - spoken or dictated; often limited to sailors or military personnel.
- the holographic will - written in the hands of the testator; in many jurisdictions, the signatures and material terms of the holographic will have to be in the hand of the testator.
- proved itself - in serious form with a written subscription to a witness to avoid a will.
- notaries - will be public and prepared by civil law notaries (jurisdiction of civil law and Louisiana, United States of America).
- mystic - sealed to death.
- the will of the serviceman - the will of a person in active-duty military service and usually lacking certain formalities, especially under English law.
- reciprocal/mirror/reciprocal/husband and wife - will be made by two or more parties (usually spouses) that make similar or identical provisions that support each other.
- unsolemn will - will where the executor is not named.
- will be in solemn form - signed by heirs and witnesses.
Some jurisdictions recognize the holographic will, which is entirely made in the hands of the inheritors themselves, or in some modern formulations, with the provision of material in the hands of the testator. The hallmark of the holographic will is that it is hand written by the testator and often unnecessary. In Louisiana, this type of agreement is called the will of Olography or Mysticism. It should be fully written, dated, and signed in the handwriting of the testator. Although the date may appear anywhere in the agreement, the testator must sign the agreement at the end of the agreement. Any additions or corrections should also be fully handwritten to have an effect. In Britain, casualty formalities for soldiers expressed their desire for active service; any such will is known as the will of an officer. A small number of jurisdictions even recognize the validity of nuncupative wills, especially for military personnel or merchant seamen. However, there are often constraints on the disposition of the property if such an oral will is used.
Terminology
- Administrator - the designated person or petitioner to manage an estate in a very close succession. The ancient English term administratrix is used to refer to the female administrator but is generally no longer in the use of standard law.
- Beneficiaries - anyone who receives a gift or benefits from trust
- Wasiat - a gift of a personal property, traditionally in addition to money.
- Codicil - (1) an amendment to a will; (2) the will to modify or partially withdraw the wishes that existed or earlier.
- Decedent - the deceased (US term)
- Demonstrative Legacy - prize a certain amount of money in the direction to be paid out of a certain fund.
- Descent - replacement to real property.
- Plan - a real gift of real property.
- Devisee - the heirs of the real property under the will.
- Distribution - substitution to private property.
- The executive / the executor or the personal representative [PR] - the person appointed to manage the property, is usually subject to the court's supervision of probate, in accordance with the wishes of the testator inheritance. In most cases, the heir will nominate an executor/PR in the will unless the person is unable or unwilling to serve. In some cases, a literary execution may be appointed to manage literary realms.
- Exordium clause is the first paragraph or sentence in the will and testament, in which the heir identifies himself, declares the legal domicile, and withdraws all previous wishes.
- Inheritor - the recipient in succession, test, or testament.
- Intestate - a person who has not made a will, or who has no valid will at death.
- Inheritance - a real gift of private property, traditionally money. Note: historically, relics have been referring to the gift of real property or private property.
- Legatee - the recipient of the personal property under the will, that is, the person receiving the inheritance.
- Probate - legal process to complete property of the deceased.
- Inheritance (or special grant) - a real gift of a properly identifiable object.
- Testate - the person who died after making the will before death.
- Testator - the person who executed or signed the will; that is, the person who will have it. The ancient English term Testatrix is used to refer to women and is still used in the US.
- Trustee - a person with a trust based obligation will ensure that the rights of the beneficiary are enforced.
Requirements for creation
Any person over the age of majority and having a "will" capacity (ie, generally, with a healthy mind) can make a will, with or without the help of a lawyer. Additional requirements may vary, depending on jurisdiction, but generally include the following requirements:
- The heir should clearly identify themselves as the will-maker, and that a will is being made; this is usually called the "publication" of the will, and is usually met by the words "final will and testament" in advance of the document.
- The testator must declare that he removed all the wills and codices beforehand. Otherwise, the next one will deprive the previous will and the codicils only to what extent they are inconsistent. However, if the next will is completely inconsistent with the previous one, the previous will is considered completely uprooted by its implications.
- The testator can show that he has the capacity to dispose of their property ("healthy mind"), and do it freely and voluntarily.
- The marker must sign and date the will, usually in the presence of at least two uninterested witnesses (non-beneficiaries). There may be additional witnesses, these are called "supernumerary" witnesses, if there is any question of conflict with interested parties. Some jurisdictions, especially Pennsylvania, have long removed all requirements for witnesses. In the United States, Louisiana requires approval by two witnesses as well as a notary by a notary. "Holographic" or handwriting will generally not require a witness to be valid.
- If a witness is appointed to receive property based on a will to be their witness, this has an effect, in many jurisdictions, of both (i) not allowing them to accept under the will, or (ii) canceling his status as a witness. However, in some states of the United States, an interested party is merely an inept witness to a clause that benefits him (for example, in Illinois).
- The mark of the testator should be placed at the end of the will. If this is not observed, any text that follows the signature will be ignored, or the whole will be void if what comes after the signature is so material that ignoring it will defeat the intention of the testator.
- One or more of the beneficiaries (devisees, legatees) should generally be clearly stated in the text, but some jurisdictions permit valid wills that only revoke the previous will, revoke the disposition in a previous will, or name an executive.
There is no legal requirement to be made by lawyers, although there are pitfalls where the will of the home may fall. The person making the will is not available to explain himself, or to correct a technical deficiency or error in expression, when it goes into effect on the person's death, and so there is little room for error. A common mistake, for example, in the implementation of artificial testaments in the United Kingdom is to use the beneficiary (usually a spouse or other close family member) as a witness - who may have an effect in the witness's deprivation law regardless of the terms of the will.
The will may not include the requirement that the heirs commit illegal, immoral, or other acts against public policy as a condition of acceptance.
In the jurisdiction of community property, a testament can not be used to deprive the inheritance of a spouse, who is entitled to at least part of the estate of the testator. In the United States, children may be deprived of their rights by the wishes of parents, except in Louisiana, where the minimum is guaranteed for surviving children unless under special circumstances are enumerated. Many civil law countries follow similar rules. In England and Wales from 1933 to 1975, a will was to withdraw the life of the spouse, but since the 1975 Legacy (Provision for Families and Dependent) Act, such an attempt could be defeated by a court order if leaving a surviving spouse (or others that depend on the rights) without reasonable financial terms .
International obligations
In 1973 an international convention, the Convention, which provided a Uniform Law on International Form of Will, was summarized in the context of UNIDROIT. The Convention provides a universally recognized code of conduct in which an intention made wherever, by any person of any nationality, shall apply and apply in any State party to the Convention. This is known as "international desire". Belgium, Bosnia-Herzegovina, Canada (for 9 provinces, not Quebec), Cyprus, Ecuador, France, Italy, Libya, Niger, Portugal Slovenia, Holy See, Iran, Laos, Russian Federation, Sierra Leone, United Kingdom, have signed but not ratified. International obligations apply only if the convention applies. Although the US has not ratified on behalf of any country, the Uniform law has been enacted in 23 states and the District of Columbia.
For individuals who have assets in many countries and at least one of these countries are not part of the Convention, it may be appropriate for the person to have many wills, one for each country. In some countries, wishes may be useful for reducing or avoiding taxes on assets and property. Caution should be taken to avoid the unintentional removal of previous desires, conflicts between desires, to anticipate jurisdiction and choice of legal issues that may arise during the testament.
Revocation
Methods and effects
The physical destruction of the will by the heir will intentionally remove it, deliberately burning or tearing up the physical document itself, or by placing a signature. In most jurisdictions, partial retraction is allowed if only some text or certain terms are crossed out. Other jurisdictions will ignore the effort or declare that the entire testament is actually revoked. An heir may also be deprived by the physical actions of others (as necessary if he is physically incapable), if this is done before them and in the presence of witnesses. Some jurisdictions may assume that the will has been destroyed if the last seen in the ownership of the testator but found mutilated or can not be found after their death.
The will is also revoked by the implementation of a new will. Most wills contain stock language that explicitly revokes any wishes that have come before, however, since the court will usually still try to read the wills together so consistently.
In some jurisdictions, complete retraction will automatically revive the latest will, while others consider the abrogation to leave the heir without a will so that their heirs will inherit it succession.
In England and Wales, marriage will automatically revoke a will as it is alleged that when married, an heir will want to review the will. A statement in a will made in a future marriage contemplation to the named person will replace this.
Divorce, on the contrary, will not revoke the will, but in many jurisdictions, it will have the effect that the former spouse is treated as if they have died before the heir and therefore will not benefit.
If a desire has been inadvertently destroyed, based on evidence that this is the case, a copy of will or design will be accepted as a will.
Dependent deprecation
Many jurisdictions carry out a fair doctrine known as relative deprivation ("DRR"). Under this doctrine, the court may dismiss revocation based on a legal error on the part of the testator for such revocation effect. For example, if an interviewer mistakenly believes that the previous will be revived by the revocation later, the court will abandon the retraction later if it will come closer to fulfilling the intent of the heir than to have no will at all. This doctrine also applies when an heir executes a second, or a new will and retracts their old will under the (mistaken) belief that a new will will prevail. However, if for some reason the new desire is invalid, the court may apply the doctrine to return and test the old will, if the court declares that the heir will prefer the old will to override the succession.
Before applying the doctrine, a court may require (with the rare exception) that there is an alternative plan of property disposition. That is, after removing the previous will, the heir can make an alternative plan of disposition. Such a plan would indicate that the heir intended to be repealed to produce the property go elsewhere, not just be disposition revoked. Secondly, the court requires either that the interviewer has repeated their mistakes in the revocation instrument, or that the error is established by clear and convincing evidence. For example, when the heir makes the original revocation, he must have mistakenly noted that he revoked the prize "because the intended recipient is dead" or "because I will impose a new will tomorrow."
DRR may be applied to return a gift incorrectly struck from a will if the intent of the testator is to enlarge the prize, but shall not apply to return such a gift if the intent of the testator is to revoke a prize in favor of another.. For example, suppose Tom has the will to leave his $ 5,000 to his secretary, Alice Johnson. If Tom crossed the clause and wrote "$ 7,000 to Alice Johnson" on the margin, but did not sign or write a date on the margin, most countries would find that Tom had revoked the previous provisions, but did not effectively change his will to add the latter; However, under the revocation DRR will be canceled because Tom is acting with the wrong belief that he can raise the reward up to $ 7,000 by writing that at the margin. Therefore, Alice will earn 5,000 dollars. However, the relative revocation doctrine will not apply if interlineation reduces the number of prizes from the original provisions (eg, "$ 5,000 for Alice Johnson" is crossed out and replaced with "$ 3,000 for Alice Johnson" without the signature or date of the Testator at the margin; Alice Johnson will not take anything).
Similarly, if Tom crossed the clause and wrote at the "$ 5,000 to Betty Smith" margin without signing or dating writing, the prize for Alice would be effectively revoked. In that case, it would not be recovered under the DRR doctrine because even if Tom mistook the effectiveness of the prize for Betty, the error did not affect Tom's intention to revoke the gift to Alice. Since the reward for Betty will be invalid because there is no proper execution, then $ 5,000 will go into Tom's residual residue.
Selection against the will
Also referred to as "voted against the will." In the United States, many countries have laws of ratification that permit the surviving spouse of the deceased to elect to receive a certain share of the property of the deceased partner in lieu of receiving certain parts left to him under the wish of the deceased spouse. As a simple example, under Iowa law (see Code of Iowa Section 633.238 (2005)), the deceased spouse leaves a testament that clearly designs a marriage house for someone other than a living spouse. The surviving spouse can choose, against the will of the will, to stay home for the rest of his life. It's called "real estate" and ends soon after the death of a surviving spouse.
The purpose of the historical and social policies of the law is to ensure that the living spouse receives the legal minimum amount of property from the deceased. Historically, this law was enacted to prevent the dead spouses from abandoning the impoverished poor, thereby transferring the burden of care to the social welfare system.
In New York, the surviving spouse is entitled to one-third of the estate of her deceased husband. Debts, reasonable administrative costs and funeral expenses are paid before spousal share calculation. Elective sections are calculated through "clean estates." Net worth includes property endorsed by laws of apostasy, probate property, and a substitute for probate, as mentioned in EPTL 5-1.1-A. The classification of New York's testamentus substitutes in net property makes it challenging for a dead spouse to release a living wife.
Essential will
In ancient times, the will of Julius Caesar named his nephew Octavianus as his adopted son and his heirs financed and legitimized his revival for political power in the late Republic, giving him the necessary resources to win a civil war against the "Liberators" and Antony and establish the Roman Empire under the name Augustus. Antony who required public reading would lead to riots and move public opinion against Caesareans. Anthony's illegal publication sealed by Octavian was an important factor in removing his support in Rome, for describing his desire to be buried in Alexandria next to the Egyptian queen Cleopatra.
In the modern era, the case of Thellusson v Woodford will lead to British legislation against the accumulation of money for distribution later on and is fitted as Jarndyce and Jarndyce in Dickens Bleak House . The Nobel Prize was founded at the will of Alfred Nobel. Charles Vance Millar will provoke the Great Stork Derby, as he succeeds in passing most of his land to the Toronto area woman who has the largest number of children in ten years after her death. (Rewards are shared among four women who have nine, with smaller payments made to women who have given birth to 10 children but lost some miscarriages Another woman who gave birth to ten children was disqualified for some illegitimate.)
The longest known legal will is that English lady Frederica Evelyn Stilwell Cook. Scheduled in 1925, it's 1,066 pages, and should be tied in 4 volumes; His property is worth $ 100,000. The shortest known legal will is the will of Bimla Rishi from Delhi, India ("all for children") and Karl Tausch of Hesse, Germany, ("all for wives") both contain only two words in the language they wrote (Hindi and Czech respectively) The shortest wish is Shripad Krishnarao Vaidya from Nagpur, Maharashtra which consists of 5 letters as, "HEIR'S".
Probate
After the heir dies, an application for a will may be made in court with the lawyer's jurisdiction to determine the validity of the will or the will of the heir may, that is, that will meet the legal requirements, and appoint an executive. In many cases, during the probationary period, at least one witness is called to testify or to sign a "witness proof" statement. However, in some jurisdictions, the law may provide the requirement for a "self-verification" to be (to be fulfilled during the execution of the will), in which the witness's testimony may be ruled out during the testament. Often there is a time limit, usually 30 days, in which a will is to be received to the judge. In some jurisdictions, only original documents may be accepted in the will - even the most accurate photocopies will not suffice. Some jurisdictions will receive a copy of the will if the original is lost or inadvertently destroyed and the validity of the copy can be proved for court satisfaction.
If the will is ruled invalid in a will, then the inheritance will take place under the laws of intestation as if a testament had never been composed.
See also
- Abandonment
- Apertura tabularum
- Death and internet, including vault password
- Land planning
- The ethical will
- The legal history of the will
- Guardianship law
- Henson believes
- Totten belief
- Will help
- Will enter the contest
References
Books
- The Administration of Wills, Trusts and Estates by Gordon W. Brown, Delmar Cengage Learning (ISBNÃ, 0-7668-5281-4) (ISBNÃ, 978-0-7668-5281 - 5)
External links
- Citizens Advice Bureau (UK)
- The Prerogatives of the Canterbury Court (1384-1858) in the National Archives (pay per view)
- The Prerogative Court of Canterbury wishes thegenealogist.co.uk (subscribe)
- The Prerogative Court of Canterbury wishes Ancestry.co.uk (subscribed)
- Download the famous people's will (British National Archives)
- William Shakespeare's Will
- Thomas Jefferson Last Will
- Jane Austen Will
- Register of the Regional Probate Registry of England - Regional Office for approval information and to register Will and/or Implementing locations
Source of the article : Wikipedia
0 Comments