United States Probate Wills
A will is a written and legal expression of the individual's instructions regarding his property a the time of his death. The will usually describes the estate and often gives the names and relationships of heirs or beneficiaries. The affidavit of the witnesses includes the date or proof of death. Types of wills include written, nuncupative, and holographic.
If accepted by the court, a copy of the will was recorded in a will book or register kept by the clerk of the court. The clerk may have made errors when he transcribed the will, but the original will is often kept in the probate packet.
Probate laws vary by state, but generally a will is valid if the testator was of legal age, of a sound mind, and was free from restraint when he or she wrote the will.
Composition of a will
The following information is usually found in a will:
- Disposal of soul and body
- Payment of debts
- Specific bequests, specific devises
- Residuary clause--what is left over goes to residuary legatee
- It names the executor
- Date the will is signed
A will may also name a guardian for the minor children and revoke all previous wills.
Types of wills
A nuncupative will is an oral will which is later spoken of in court by those who heard the testator speak. Some U.S. states do not honor this type of will. (A to Zax by Barbara Jean Evans, [Alexandria, VA: Hearthside Press, 1995], 186.)
A holographic will is the original copy written by the testator. It is entirely in the testator's handwriting. If someone else writes on it, it is invalid. This will is not witnessed.
This will is from the French tradition (Louisiana). Person goes to a notary (like a lawyer), and writes the will in the presence of 2-3 witnesses and the notary. The person then puts the will in an envelope and seals it. The witnesses don't sign the will, but they do sign that he put it in the envelope.
A will made by two or more persons together and signed by bothy--sometimes called a conjoint will.
A will made in disregard to natural obligations of inheritance.
A will where no executor is named. An administrator will be appointed by the court.
Ammendments to wills are called codicils.
Proving the will
- The will is created in writing, signed, acknowledged before witnesses and signed.
- Death of the testator.
- The will is presented in probate court by written application or petition.
- The court admits the will to probate, a hearing is set and published.
- The will is recorded and registered by the court (small fee). The will is usually indexed in this step.
- The executor pays the bills with approval of the court; notice to creditors is published.
- Provisions of the will are carried out; decree of distribution may be completed by the executor.
The United States Probate portal page explains how to use wills in family history research.