Legal Considerations

  • The Law of Wills is complex.
  • Dramatic and serious consequences result from a Will.
  • The Law applicable to Wills is generally within the jurisdiction of each State, so Our Legal Team has outlined certain Legal Considerations that are generally applicable to each State.
  • These Legal Considerations are not intended to be an exhaustive list of all legal considerations.
  • AmericaWills.com will inform you of the many important legal issues concerning your Will.
  • You may wish to obtain legal advice on the effect of these Legal Considerations prior to completing a Will on this web site.

1. What property can be gifted under a Will?

(a) Generally

  • Those assets that you own, have control of or have a beneficial interest in.
  • Personal Property (cars, jewellery, stocks, bank accounts, etc.)
  • Real Estate.
  • You cannot gift property that you own if it is owned in joint tenancy as this type of property vests in the surviving joint tenant on your death irrespective of what your Will may say.
  • You will not be able to gift property that you have promised contractually (e.g., spousal agreements or shareholders agreements).
  • (b) Special Property Rules for Married Persons

    • In a Community Property state, your spouse automatically owns ½ of what either of you earned during marriage and all property acquired with those earnings. Similarly, all debts incurred during marriage are debts of the couple. On the death of one spouse, one-half of the community property will go to the surviving spouse.
    • You can do what you want in your Will in respect to your half of the Community Property and your Separate Property (i.e., property inherited by you or owned by you before marriage).
    • Prior to completing a Will on this website, AmericaWills.com recommends that you determine whether you are in a Community Property State and, if so, that you obtain legal advice in respect to your Community Property and your Separate Property.
    2. The formal requirements of a Will

  • Must be in writing.
  • Must be signed at its end by the Testator.
  • Testator's signature must be made by him or her in the presence of 2 or more witnesses that are both present at the same time.(in Vermont, 3 witnesses are needed)
  • The 2 or more witnesses must sign the Will (as witnesses) in the presence of the Testator.
  • The Testator must be of the Age of Majority in his or her State.
  • If a witness is a beneficiary under the Will or a spouse of a beneficiary, any gift in favour of such beneficiary may fail.
  • 3. How to revoke a Will?
    (a) Marriage
    • In certain States, the marriage of a Testator after signing a Will revokes the Will unless there is a clause in the Will specifying that the Will was made "in contemplation of my marriage to (Mary Smith)".
    • In other States, the Will is not revoked by a subsequent marriage unless a child is born to the married couple.
    • In some States, a Will is unaffected by subsequent marriage.
    • In some States, although subsequent marriage may not revoke the Will, the surviving Spouse will take a share of the Estate as if you died intestate.
    (b) Divorce
    • In some States, Divorce may invalidate certain provisions within a Will that are made in favor of a Testator's spouse unless a contrary intention appears in the Will.
    • In some States, Divorce voids all provisions in a Will related to the spouse.
    (c) A Valid Later Will.
    (d) The Destruction of the Will by the Testator
    C4. How to change a Will?

  • Make a new Will.
  • Sign a Codicil [a document that is signed like a Will but only alters certain provisions (click here for sample wording)].
  • 5. What can affect the validity of a Will? :

  • The Testator must have knowledge of the assets to be disposed of in the Will.
  • The Testator, by his or her Will, must intend to dispose of his or her property effective on his or her death.
  • The Testator must know what is contemplated in the Will and must desire those results (if the Testator lacks this intention the Will may be declared invalid).
  • The Testator must appreciate the consequences that will result from the contents of the Will.
  • The Testator must appreciate the claims to the Estate that may result due to the contents of the Will.
  • The Testator must be making the Will voluntarily.
  • The Testator's intention must be genuine-if a provision in a Will is found by a Court to be due to force, fraud, fear or undue influence by another person, the Will may be declared invalid.
  • The Testator must have Mental Capacity and be free of mental disorder.
  • If your Mental Capacity is in doubt, it may help to have your Doctor witness you signing the Will-alternatively, you may wish to obtain a written opinion from your Doctor that, in his or her opinion, you have the Capacity to sign a Will (this may require a mental status examination).
  • If there are circumstances that a Court may consider "Suspicious", this may result in the Court concluding that the Testator lacked Capacity.
  • If you sign a Will and then get married, some States deem your Will to be revoked.
  • If you sign a Will and then get divorced, some States deem any provisions related to your spouse as void.
  • 6. The Executor/Trustee

    Duties and Responsibilities

    • This person takes charge upon the death of the Testator.
    • They are responsible for your burial.
    • They must Probate the Will with the Court.
    • They must determine and gather up all the assets of the Estate.
    • They must determine and pay the debts of the Estate.
    • They must pay out the gifts you intended under the Will.

    Who to Choose

    • Someone you trust.
    • Someone that generally shares your views.
    • Someone who will feel responsible to fulfill your wishes.
    • Someone that has the ability to deal with the many duties and responsibilities of an Executor.
    • Usually it will be a spouse, your children, or friends.
    • If the Estate is complicated (or the nature of the assets requires special expertise), you may wish to have professional executors (Lawyer, Chartered Accountant) or in some cases a corporate Trustee such as a Trust Company.

    7. Guardians (who to choose)

  • Generally, a parent can appoint a Guardian for their infant children.
  • Identify this person (or, if you wish to appoint a husband and wife, these persons) in your Will.
  • In the absence of such an appointment, the Court will be required to consider who should be appointed; a Court Application will expose your Estate to significant legal expenses.
  • The Guardian should share as much in common with you as possible.
    • would they make the same decisions about your children as you would, if you were alive?
    • would they be as dedicated to your children as you would have been?
    • if they have their own children, can they treat your children on an equal footing?
    • will they spend your children's inheritance in a manner consistent with your wishes?
    • do they live in your community or will the children be removed from all their friends and community activities?
    • do they share your religious beliefs (if this is important to you)
    • do you trust them?
    • do your children like them?

    8. How to give?

       I  Personal Effects & Articles
         (a)  Specific Bequests

    • Where you wish to leave an intended recipient a valuable article or piece of your personal property, the preferable course of action would be for you to leave a specific bequest in your Will to that effect (e.g., your antique General Electric radio to your friend, John…).
    • It is important that you provide as much description of the specific article as possible to avoid uncertainty. For example, if you have many rings, don’t state “my nice ring to my sister…” as what is “nice” may be disputed. It would be preferable to state “my diamond ring to my sister…and my opal ring to my friend…”.
    • It is also important to remember that if you dispose of the specific article during your lifetime the gift to the intended recipient fails.

       II  Cash

    • In addition to a Memoranda or Specific Bequests, you may choose to make certain gifts in the form of cash.
    • It is important to note that if your Will is completed many years in advance of your death, the value of the cash gift may decrease due to the cost of living and inflation. In other words, the purchasing power of $1.00 today, will likely be very different (i.e., much lower) 20 years from now.
    • Also, remember that the greater the amount of your cash gifts, the less that you can give by way of a gift of the residue.

       III  Residue or Remainder of Estate

    • The Residue of an Estate is what remains after: payment of all expenses and liabilities of the Estate; payment of all specific cash bequests; and the delivery of any personal articles that were the subject of specific bequests (or included in a Memoranda of Articles).
    • It must be remembered that all expenses to the Estate must be paid (including any taxes owed by the Estate) before the intended recipients of the residue are entitled to the gift of the residue.
    • Therefore, it is important that you calculate the value of your Estate and then factor in the specific gifts of cash and articles and the debts, liabilities and expenses of the Estate. Then you will have a fair expectation of the amount of the gift that is available for you to give by way of a gift of the residue.

    9. What claims can be made against your estate?

    Claims by Spouses

    • Most States do not permit you to disinherit your spouse.  In Community Property States, 1/2 of all property is deemed to be owned by each spouse.  In other States, spouses are given the right to claim a portion of the deceased spouse's estate, irrespective of the terms of the Will (this "statutory elective share" is a percentage that varies from State to State). 
    • In certain States, a spouse can also claim Homestead Rights, whereby a spouse claims entitlement to the family home and adjacent lands.

       Claims by Children

    • Some States permit you to disinherit a child without mentioning the child in your Will.  Other States require that you specifically name a child you wish to disinherit.
    • In some States, if you omit to provide for your children in your Will, these children will be entitled to take a share of your estate equal to that which they would have received had you died intestate, unless the omission is shown to be intentional.  In certain States, if a child omitted from a Will can show that the omission was due to an accident or mistake on your part in completing your Will, the child would be entitled to take a share of your estate equal to what they would have received if you died intestate.
    • If a child is born or adopted after you sign your Will, many States will grant that child a share of your estate, the share being equal to what they would have received if you died intestate.
    • In certain States, children may also be entitled to a statutory allowance (a specified dollar amount) or the right to live in the family home.
    • Some States restrict how much you can leave to charity if you have surviving children.

       Claims by Creditors

    • Contractual obligations of the Testator or civil wrongs (torts) committed by the Testator.

    10. Important Definitions of Legal Terms

    • Age of Majority - "Age at which a person may contract (usually 18 or 19 in most States); sometimes referred to as full age; legal age; adulthood. Age at which one may execute a valid Will or vote.
    • Bequest - "a gift by Will of personal property…a legacy".
    • Codicil - "a supplement or an addition to a Will; it may explain, modify, add to, subtract from, qualify, alter, restrain or revoke provisions in a Will. For Example :".
    • This is a Codicil to the last Will of me, [name], of [address], California, which last Will is dated [date of Will] and is referred to in this Codicil as “my Will”.

      1. [insert desired changes]

      2. In all other respects I confirm my Will.

      Signed by [name] as a Codicil to [his/her] Will on [month, day, year]

      (a Codicil must be properly completed and signed like a Will; 2 witnesses, etc.) 

    • "Dependant's Relief Legislation" - In most States there is legislation (the name of the legislation may vary from State to State) that permits a child (definition of a 'child' may include all biological or adopted children as well as any child that is neither your biological nor adopted child but is treated by you as though he or she is your child) or spouse (definition could include a common law spouse of the same or opposite sex) and sometimes parents, grand-parents and brothers and sisters to apply to Court for maintenance and support where reasonable support for maintenance has not been made in the Will. If the Court concludes that, based on a number of different considerations, there has not been adequate maintenance, it will vary the Will and order a lump sum or periodic payment out of the Estate. In some States the considerations viewed by the Court include the following: the moral obligation of the Testator; the intentions of the Testator, the size of the Estate, the financial, mental and physical circumstances of the claimant.
    • Executor Remuneration - In most States, legislation prescribes the remuneration in the form of a fair and reasonable allowance based on the assets of the Estate for his or her care, the pains and trouble and the time spent.
    • Intestate - "a person is said to die intestate when he or she dies without making a Will, or dies without leaving anything to testify what his or her wishes were with respect to the disposal of his or her property after his or her death".
    • Intestate Succession - "a succession is called "intestate" when the deceased has left no Will, or when his or her Will has been revoked or annulled as irregular".
    • Intestate Successors - These persons are deemed by each State's legislation, as the persons upon whom an intestate's Estate will devolve (be distributed) and the amount that these persons will receive.
    • Issue - "includes all lineal descendants of the ancestor."
    • Joint Tenancy - "the ownership of land in common by several persons where there is a right of survivorship; i.e., where on the death of one joint owner the land as a whole vests in the survivors, and can only be disposed of Will by the last surviving owner."
    • Mental Capacity - "contemplates the ability to understand the nature and effect of the act in which a person is engaged and the business he is transacting…such a measure of intelligence, understanding, memory, and judgment (relative to the particular transaction) as Will enable the person to understand the nature of the act."
    • Probate - An Order granted by a Judge of the Court to the effect that a Will of a certain person has been proved and registered in Court and that administration of the Estate has been granted to an Executor/Trustee proving the Will, the Executor/Trustee having first sworn to administer the assets of the Estate and having completed an inventory of the Estate and agreeing to account for the Estate assets when called upon.
    • Residue - The amount of an Estate that remains after all charges, debts, liabilities, and specific bequests have been paid and specific gifts of articles delivered.
    • Suspicious Circumstances - Any circumstances surrounding the signing or preparation of a Will that casts doubt on the Testator's capacity to make a Will or touch upon a Testator's intention relative to the Will's contents, such circumstances including: beneficiary involvement in clandestine Will preparation, Testator's dependence on beneficiary or isolation from "natural" beneficiaries, dramatic changes from the provisions contained in an earlier Will and a Testator's seriously deteriorating health.
    • Testator - "one who makes a Will".
    • Trust - "a property interest held by one person for the benefit of another person".
    • Undue Influence - "where a person makes a disposition of property under such circumstances as to show or give rise to the presumption that he has not been allowed to exercise a free and deliberate judgment on the matter".
    • Will - "the legal expression or declaration of a person's mind or wishes as to the disposition of his property, to be performed or to take effect after his death".

    11. Examples and Illustrations

  • Intestate Succession
    If the deceased has a spouse but no other descendants the spouse would receive the entire estate. 

    If the deceased leaves a spouse and surviving descendants, the spouse receives the intestate’s household furnishings and: 

    (a) if the deceased’s descendants are descendants of both the deceased and the spouse, the spouse receives an entitlement of $300,000; 

    (b) if the deceased’s descendants are not common to the deceased and the spouse, the spouse receives an entitlement of $150,000 


    If the net value of a deceased’s estate is less than the spouse’s entitlement under (a) or (b) above, the entire deceased’s estate must be distributed to the spouse. 

    If the net value of an intestate estate is the same as or greater than the spouse’s entitlement under (a) or (b) above, the residue of the deceased’s estate must be distributed as follows: 

    (i) one half to the spouse; 

    (ii) one half to the intestate’s descendants. 

    If the deceased had no spouse and no descendants then the estate will be distributed to the intestate’s parents. If there are no parents then the deceased’s estate will be distributed to the descendants of the deceased’s parents which will include brothers and sisters of the deceased and then to the nieces and nephews of the deceased. 

    If there are no descendants of the parents of the deceased the estate shall be distributed to the grandparents of the deceased. If there are no grandparents, the estate shall be distributed to the great-grandparents of the deceased and, finally, if there are no relatives of the deceased living, the estate shall be distributed to the government. 


  • Joint Tenancy :  Where spouses are the registered owner of a home "as joint tenants", then on the death of one of the spouses, the surviving spouse is vested with full ownership of the home irrespective of what the deceased spouse's Will may say.


  • Codicil : 

    This is a Codicil to the last Will of me, [name], of [address], which last Will is dated [date of Will] and is referred to in this Codicil as “my Will”.

    1. [insert desired changes] 

    2. In all other respects I confirm my Will. 

    Signed by [name] as a Codicil to [his/her] Will on [month, day, year] 

    (a Codicil must be properly completed and signed liked a Will; 2 witnesses, etc.)


  • 12. I’ve read the Caution Zone

    • This site does not make specific provision for common law relationships or same-sex partners. In light of recent caselaw and legislative changes, persons in a common law or same-sex relationship should, for the purposes of completing a Will on this site, consider themselves “Married”. If you find this unsatisfactory or, if you have any concerns on this subject, we recommend that you not complete a Will on this site and, instead, seek the assistance of legal counsel in your State.
    • If you are “Married”, your spouse can make a claim under legislation in your State. The claim can be for an equalization of assets or for adequate maintenance and support. Basically, if the Court agrees with the spouse’s claim, the Court will revise your Will accordingly. If you are concerned in relation to the type of claim your spouse can make against your Estate, we would recommend that you not complete a Will until you have obtained legal counsel in your State.
    • If, in your Will, you are purposely not leaving a substantial portion of your Estate to your spouse, we would recommend that you consult with legal counsel prior to signing your Will.
    • A Will completed on this Site does not allow you to leave your Spouse less than one hundred percent of the residue of your estate. If this is unacceptable to you, we recommend that you obtain legal advice, prior to signing your Will.
    • If you wish to leave a Gift to a person other than your Spouse, the only way you can do this on this Site is to give that person a Specific Bequest of a personal article or cash. If this is unacceptable to you, we recommend that you obtain legal counsel prior to signing your Will.
    • If you intend on separating or divorcing (or if you recently have), we would recommend that you seek legal counsel prior to signing a Will.
    • If you complete a Will and then marry, your Will is revoked when this marriage occurs and you should therefore complete a new Will immediately following your marriage.
    • If you complete a Will and then divorce, any gift to your spouse (or an appointment of your spouse as your executor/trustee) may be cancelled. If you intend to have such gift or appointment continue after the divorce, you should complete a new Will after your divorce.
    • If you intend on either disinheriting certain of your children or providing gifts to your children in unequal amounts, your children can make application to Court for a greater share of your Estate. In these circumstances, we would recommend that you obtain legal counsel prior to signing a Will.
    • If you are uncertain as to whether someone will be considered your “child” because he or she was adopted by you, is your illegitimate biological child or is neither your biological nor adopted child but has been treated by you as though he or she was your child, we recommend that you obtain legal advice in your State prior to signing a Will. A Will completed on this Site does not allow you to leave less than one hundred percent of the residue of your Estate to your Children.
    • If you wish to leave a Gift to a person other than one of your Children, the only way to do this on this Site is to give that person a Specific Bequest of a personal article or cash. If this is unacceptable to you, we recommend that you obtain legal advice prior to signing your Will.
    • If your Estate is substantial and your infant children are the beneficiaries, you may wish to create certain trusts. This will require that you obtain the assistance of legal counsel in order to properly complete a Will.
    • If your Estate is substantial and your spouse is the beneficiary, you may wish to obtain legal advice prior to signing a Will in order to consider a trust for your spouse. This may result in certain tax advantages.
    • If your Estate is substantial, you may wish to not complete a Will until you have received expert advice from Estate planners, tax planners and legal counsel with a view to reducing the taxes that may be payable upon your death.
    • If you are uncertain as to whether you have the necessary mental competency to complete a Will, we would recommend that you obtain legal advice prior to signing a Will.
    • If you feel pressured by certain persons to complete a Will in a manner that is not consistent with your wishes, we would recommend that you obtain legal advice prior to signing a Will.
    • If you are not comfortable with the legal jargon or terms contained or used on this site or if you do not fully understand any of the legal terms or instructions contained on this site, we would recommend that you obtain legal advice prior to signing a Will.
    • If after completing your Will on this site, you don’t fully understand all the details and contents of your Will, we would recommend that you not sign the Will without first obtaining legal advice.