Estate Planning and Probate
Wills
A valid will requires testamentary intent, capacity (generally adult age and sound mind at execution), and formalities: a writing signed by the testator and, in most states, two disinterested witnesses. A holographic will is handwritten and unwitnessed and is valid only where the statute allows it, typically requiring material terms in the testator's hand. A codicil amends a will. Revocation occurs by physical act with intent, by a subsequent instrument, or by operation of law, such as divorce in many states. Know revival, lapse and anti-lapse statutes, ademption, abatement, pretermitted heirs, and the elective share.
Nonprobate Transfers and Trusts
Property held in joint tenancy, POD or TOD accounts, and life insurance passes by beneficiary designation outside probate and controls over the will. A trust requires a settlor, trustee, beneficiary, and trust res. A revocable living trust avoids probate; a pour-over will catches assets left out.
Probate Administration
The personal representative is an executor if named in the will and an administrator if appointed when there is no will. Administration involves letters, inventory, notice to creditors, claim periods, and closing. Small-estate affidavits and ancillary probate for out-of-state property are common short forms.
Traps
A beneficiary designation beats a contrary will provision. A will does not control jointly held property. Missing witness attestation usually invalidates the will. Capacity is measured at the moment of execution, not earlier.
Worked Example
A decedent's will leaves everything to a child, but her life insurance names her sister. The sister takes the insurance proceeds; the designation, not the will, governs.