WILLS

I.    GENERALLY.

A.    DEFINITIONS.

A will or testament is generally a written instrument making disposition of a person's property, to take effect after his or her death. A testator is the maker of a will when the same is made by a male person; if a female, in older cases, the maker is called a testatrix A codicil is an addition or alteration of a part of an executed will. A legacy is a gift or bequest of money or personal property by will. The person to whom it is given is called a legatee, and if the gift consists of the remainder of the property after paying all debts and other legacies, he or she is called the residuary legatee. A person to whom real estate is given is called a devisee. An executor is a male person named in the will to whom is entrusted the duty of administrating the estate of the testator according to the provisions of the will. If the will names a female person, she is called the executrix. An administrator is a male person appointed by the court to administer the estate of a deceased person who did not have a will or whose will named as executor a party incompetent or unwilling to act in that capacity. If the party appointed by the court is a female person, she is called the administratrix. The states have abandoned terminology that distinguishes between the sexes, using administrator or testator for persons of either sex. but the terminology remains in order cases and documents.

B.    KINDS OF WILLS.

There are two kinds of wills, written and unwritten. An unwritten will is called nuncupative. Such a will might be made by a soldier in active service or a sailor at sea, and depends upon proof of the persons hearing of it.

C.    GENERAL PRINCIPLES.

1. Any person may be a devisee or a legatee, including minors, or corporations.
   
   
2. Testator's property is primarily liable for testator's debts and funeral expenses, which must be paid before any part of the property can be distributed to legatees.
   
   
3. A will has no force or effect until after testator's death.
   
   
4. The last will annuls all former wills.
   
   
5. A will takes effect from the day of the testator's death.
   
   
6. All matters pertaining to wills and inheritances are handled by the court having probate jurisdiction.

D.    WHO MAY MAKE A WILL.

All persons are competent to make wills except infants, persons of unsound mind, and some persons suffering lack of mental capacity. In like manner any person who is competent to make a will can appoint his or her own executor. If the person so appointed is legally competent to transact business, the courts will confirm the appointment if he or she lives within the jurisdiction of the court.

II.    FORMAL REQUIREMENTS.

NOTE: THESE ARE STATUTORY IN ALL STATES. SEE ORS 112.025, 112.225, 112, 415, 114.215, 111.005.

1. A will should be written.
   
   
2. A will should be dated.
   
   
3. The maker should sign his or her name in full, by mark if necessary.
   
   
4. A will should be witnessed by two or more disinterested parties, the number of witnesses varying according to statutes.
   
   
5. The witnesses need not know the contents of the will. It is generally necessary that the testator acknowledge to them that it is his will, sign it in their presence, and request them to sign as witnesses in his presence and in the presence of each other.
   
   
6. The wishes of the testator should be fully and clearly expressed in the will.
   
   
7. No exact form of words is necessary to make a will.
   
   
8. In writing wills simple language should be used. Statements concerning every provision or condition of the will should be fully and plainly made.
   
   
9. A will is valid even if written with a lead pencil.
   
   
10. To be effective in matters pertaining to real estate, a will must be executed according to the laws of the state in which the real estate is located. This requirement is generally in regard to the number of witnesses to a will. Care should be exercised to dispose of all the property belonging to the person making a will. In order to accomplish this, a will should have a clause, "all the rest, residue, and remainder of my estate, I give . . ." etc., or "all the rest, residue, and remainder of my estate shall be divided into the following parts, 1/3 to....... 1/6 to ....... etc."
    
    
11. Personal property may be conveyed in accordance with the law of the state in which the testator resides.
    
    
12. If trust provisions or limited estates are to be provided for in a will, it is best to have the will drawn by a competent lawyer, as these provisions are very technical, and may result in much litigation if not carefully drawn.
    
    
13. Generally a person does not need to give his property or any part of it to his children, but mention of the names of all the children is evidence of the testator's competency.

III.    CHALLENGES.

A will is set aside under the following conditions:

1. When it can be proved that the testator was feebleminded or lacking in mental capacity.
   
   
2. When the testator revokes it before death, in which case it is usually destroyed.
   
   
3. When the property devised has been disposed of during the testator's lifetime.

IV.    EXECUTORS AND ADMINISTRATORS.

SEE STATE STATUTES FOR EXACT DUTIES AND RESPONSIBILITIES.

A.    HOW APPOINTED.

An executor is named in a will to execute that will and settle the estate. If the will does not name an executor, or if the named executor cannot act, the probate court, or court with jurisdiction, appoints an administrator with the will annexed. If a person dies without leaving a will, the court appoints an administrator, whose duty is the same as that of an executor except that he, having no will of the deceased, distributes the property as the law directs.

B.    THE DUTIES OF AN EXECUTOR ARE:

1. To see that the deceased is suitably buried, avoiding unreasonable expense if the estate is insolvent.
   
   
2. To offer the will for probate, or proving, and to conform to the laws of his state and rules of the court, the clerk of which will give full instructions.
   
   
3. To make and return to the court within required time an inventory of the property. Real estate lying in another state need not be inventoried, for that must be administered upon in the state where it lies; but personal property situated in another state should be inventoried. Any encumbrances upon real estate should be noted and described.
   
   
4. To collect the property, pay the debts and dispose of the remainder as the law and will, or either, directs. Generally the debts should be paid as follows: (1 ) funeral expenses, (2) expenses of last sickness, (3) debts due the United States, (4) debts due the state, and (5) claims of creditors.
   
   
5. To render the accounts as directed by the court. The law provides that the widow of the intestate shall be the first entitled to act as administrator; next, the nearest of kin who is competent; next, any creditor who will accept the trust, and lastly, any other suitable person. Executors and administrators are required to take an official oath and also to give bond, usually for double the amount of the estate. Any blanks for probate may usually be secured from the clerk of the court having probate jurisdiction.