Wills 101: Witnesses

Building off of what I wrote in the last installment of Wills 101 about the invalidity of handwritten, unattested wills, i.e. holographic wills, I want to elaborate on what is known as the attestation requirement.  What is attestation?  Attestation is the act whereby a person witnesses the creation of a will and signs the physical document, attesting to its authenticity.  What this means is that a will needs to be witnessed and signed by the witnesses in order to be valid.  While all states require that wills be witnessed, they differ in regards to what attestation requires.  Any attorney will tell you that Wisconsin’s attestation requirement is found in section 853.03(2)(am) which states that a will “must be signed by at least 2 witnesses.”  The witnesses need to sign the will in the testator’s presence, and each must observe the testator sign the will; however witnesses do not need to sign in each other’s presence.  What does it mean to be in the testator’s presence?  A witness and a testator are said to be in each other’s “presence” as long they are nearby and as long as each has a general awareness and cognizance of the where other is and what they are doing.  Who is qualified to serve as a witness?  Anyone deemed mature enough and of requisite mental capacity to appreciate and understand what they are witnessing is competent to be a witness.

 

~Rod

 

Wills 101: Holographic Wills

When considering writing a will, some people might wonder whether they can create a valid will by, say, tearing out a piece of notebook paper and writing thereupon something to the effect of “My name is X and this is my final will and testament. Upon my death, I will all of my property to Y”, signing it, and stashing it away in a desk drawer.  Such a document is called a “holographic will”; it is a document that is written entirely in the testator’s own handwriting with no attesting witnesses.

The answer to this question is that, while over half of the states will give effect to such documents, Wisconsin does not.  In the Badger State, a will must be witnessed in order to be valid.  However, Wisconsin law does make an exception for holographic wills that were drafted in another jurisdiction and that were valid under the laws of that jurisdiction.  Therefore, Wisconsin courts will recognize and probate a holographic will that was written in another state, as long as it was created in accordance with the laws of that state.

Take it from an estate planning attorney, this stuff is important!

Wills 101

 

 

Welcome to Wills 101, an estate planning lawyer’s fireside chat about the law of wills and trusts. This is the first in what, hopefully, will be a weekly series.  The goal of this series is to anticipate what might be some frequently asked questions regarding two important yet somewhat mysterious legal instruments: wills and trusts.  One of the chief complicating factors about wills and trusts is the legal jargon that has often been sewn into the law by lawyers, judges, and legislators.

While many of these terms rightly seem dated and arbitrary, they are nevertheless here to stay.  Since it is necessary to use this vocabulary in any discussion of probate law, I’m devoting the first installment of Wills 101 to some common probate law terminology.

Probate: Probate is the judicial process by which a will is given legal effect.  A will, on its own, is no more than a sheet of paper; in order for any property to be distributed according to the will, the will must be probated. This means that the will must first be physically delivered to the probate court. More on the topic of probate proceedings later.

Testator: The testator is the person for whom the will is written.

Intestacy: Intestacy is a legal status that applies to a decedent who’s assets are not entirely disposed of by a will. This includes persons who never made a will, who made a will that covered only some of their assets, who made a will that was later held invalid, and who made a will, revoked it and never wrote another one.  Someone who dies without a valid will is said to have died “intestate” and their property will be distributed according to the state’s intestate succession laws. That, however, is a topic for another post….

Bequest: A bequest is an intended transfer of assets, by will, from the testator to a beneficiary.

Beneficiary: A beneficiary is the intended recipient of a bequest. A beneficiary need not be a human being; legal entities such as corporations, charities, schools, and churches can also named as be beneficiaries.

Attestation:  Attestation is the act by which a witness to a will’s signing signs the will herself and thus “attests” to its authenticity.

Devise: A devise is a bequest of an interest in land.

Escheat:  A person almost always has heirs; but when they don’t, their assets will pass to the state at death.  Even if they never create a will, even if they have no surviving family members of any kind, a person always has an heir: the State.  Escheat is the legal event in which a decedent’s assets pass to the State at death.  It occurs when a decedent dies without any other heirs.

Trust:  A trust is a relationship whereby a trustee holds legal title to specific property with a duty to manage, protect, administer and invest that property for the benefit of designated beneficiaries.

Settlor: The settlor is the person who creates the trust, and who is the original owner of the trust property.

Trustee: The trustee is the entity chosen by the settlor to take legal ownership of the trust assets and manage and despose of them as the settlor so chooses.

I hope that this post has been helpful!

~Rod