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Wills: Overview, Validity, Holographic, Challenges

What is a Will?

A Will is a signed document that describes your wishes about things that happen after your death, such as who receives your property and who will take care of your minor children or an incapacitated adult child.

A Will usually must be all of these things:

The person making the Will can sign the Will any way he or she chooses, even with a symbol if the person intends it to be a signature. The person making the Will can also ask someone to sign for him or her, as long as the person signs physically close to the person making the Will and the person making the Will is aware of the signing.

A witness can be anyone who is able to testify in court about what he or she saw. A person can act as a witness even if he or she is related to the person making the Will or receives a gift under the Will.

If the Will is not signed by two witnesses, it may still be valid as a holographic Will.

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Why do I need a Will?

A Will allows you to make your own decisions about your property and minor children. Without a Will, the state of Alaska or a court will make these decisions for you in a way that may not be what you wanted.

Below are some things that you can do if you make a Will:

It is a good idea to see an estate planning lawyer to prepare Your Will. It is important to make sure that the Will is valid under Alaska law, accurately describes your wishes and does everything possible to benefit you. A properly prepared Will can avoid costly and time-consuming legal battles over your property and minor children.

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What are some ways in which I can leave property to others if I use a Will?

Below are some things you can do with your property only if you make a Will:

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Who should I name as Personal Representative in a Will?

A Personal Representative is in charge of the probate process. He or she gathers all property that you own at your death, pays creditors, wraps up your final affairs and then transfers the remaining property to those persons who are supposed to receive it. You can name any capable person who is 19 years or older to handle these duties. This could be a family member, a friend, a professional advisor or even an organization such as a bank or trust company. Ideally, you should name someone who is trustworthy, organized, good with finances, fair-minded and who can communicate well with the court, your family and the persons you name under your Will to receive property.

You should also consider that serving as Personal Representative takes time and can involve a lot of work. Your Personal Representative does not need to live in Alaska but he or she may need to travel to Alaska at least once to deal with your property and the probate. A Personal Representative is entitled to be paid from the property of your estate. If you name an organization as your Personal Representative, you should be aware that it will usually charge higher fees than those charged by an individual. Read more about the Personal Representative's Duties and Responsibilities.

It is a good idea to check with the individual or organization before you name a Personal Representative to make sure that the person is willing and able to serve. You do not need to ask in advance but anyone can refuse to serve as Personal Representative at your death. You should name at least one back-up Personal Representative in case your first choice is unable to serve or does not want to serve.

If you do not have a Will, the state of Alaska decides who has the right to be your Personal Representative.

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Should I waive bond in a Will?

This is an important, but commonly overlooked, reason to make a Will. Your Personal Representative must post bond before he or she can begin the probate process. This means that he or she must pledge either cash or property to the court to guarantee that he or she will fulfill the duties as Personal Representative. Instead of posting bond, the Personal Representative can try to collect waivers from all persons who are supposed to receive property, but if unable to he or she must post bond. Most Wills waive bond so that the person who you want to serve as Personal Representative can begin the probate process right away and take care of your estate without pledging his or her own property.

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Who should I name as a Guardian in a Will?

Minor Children

If you have a minor child, one of the most important reasons to make a Will is to name someone you trust to raise, take care of and be responsible for your child. A Guardian physically cares for your child, provides food, clothing, shelter and medical care and makes all decisions that you could make about your child's education, health and welfare. A Guardian can also manage the child's inheritance until he or she turns 18.

If both parents die and neither parent appoints a Guardian in his or her Will, family members or even friends may argue about who should raise your child and manage his or her inheritance. Your child may need to live temporarily with different caregivers. The court will hold one or more hearings, listen to what everyone has to say and then make its own decision. This may take a long time, can be expensive and the person chosen by the court may not be the person you would choose to raise your child.

Naming a Guardian allows your child to move under the Guardian's care more quickly and avoids costs and delays due to challenges or disputes. This makes the transition easier for your child, gives him or her stability and makes sure that someone you know and trust will take care of him or her.

For other matters to consider when choosing a Guardian, see Surviving Minor Children.

Incapacitated Adult Child or Spouse

A parent or spouse of an incapacitated adult may by will appoint a guardian of the incapacitated person (ward). The guardian will make decisions concerning arrangements for the adult ward's housing, education, medical care, food, clothing, and social activities. The guardian may also manage the financial affairs of the ward.

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Should I use a Will to create a Trust?

If you create a trust in your Will, you can appoint someone to manage the property of your estate for a period of time longer than the probate. In a trust, the property is held by a Trustee for the benefit of the persons you choose.

With a trust, you can decide that your Trustee should hold the property until the person reaches a certain age or use the property for certain things such as the person's education or medical care. If you do not have a trust, the Personal Representative must give the property right away to each person who is supposed to receive it. It is especially important to consider creating a trust if you have minor children. If you do not create a trust, the child's Guardian will use the inheritance for the child's support until the child turns 18. At this age, the Guardian will have to turn over all remaining property to the child and the child can use the money however he or she desires.

For other matters to consider when creating a trust, see Trusts.

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How can I use a Will to create a tangible personal property memorandum?

A Will can refer to a list that leaves tangible personal property to friends or family members. This list is called a tangible personal property memorandum. The memorandum is usually used to give away items of sentimental value such as photographs, antiques or heirlooms but can also be used for vehicles, firearms, equipment, tools, art or furnishings. You cannot use it to leave money or real property to anyone.

To be valid, the memorandum must meet all of these conditions:

A memorandum is more flexible than a Will because it does not need to meet all of the requirements of a Will. You can make the list either before or after the Will. You can type it or handwrite it. You can change it whenever you choose as long as you sign it each time. No one has to witness your signature. Sticky notes or notes taped on items do not qualify as a memorandum unless they meet all of the above requirements.

Keep in mind that the memorandum can only be used if the Will refers to it. It is not a substitute for a Will and cannot be used to give away property if you die intestate (when there is no Will).

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What does it mean to "prove" a Will?

When you give the Will to the probate court, you must "prove" that the person who died did all of these things when he or she made the Will:

A Self-Proving Will is one where the person making the Will and both of the witnesses to the Will say all of the things needed to prove a Will in a sworn statement. These statements are usually attached to the Will. Together, they are often called a "self-proving affidavit." A Will that has these statements does not need to be "proved" by other documents or testimony in court.

If it is not a Self-Proving Will, you must prove the Will using the formal probate process. You can file the sworn statement of a witness (an affidavit) that tells the court that the person who died did all of the things needed. But if someone disagrees, at least one of the witnesses must testify in court if possible. If no witness can make a statement or testify, you can give some other evidence to the court.

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How can a Will be canceled or replaced?

A Will (or part of a Will) can be canceled or replaced in any of the following ways:

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If there are two Wills, which is valid?

The later Will, as long as it cancels (revokes) the earlier Will(s). If the new Will does not clearly say that it cancels the old Will, you will have to use the formal probate process.

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Can a Will leave things to groups of people and not specifically name them?

Yes, but it depends on the relationship. A testator can gift items to a group of persons such as "children," "siblings" or "parents," including those related by half blood. However, this does not include step-children, step-siblings, step-parents or any other surrogate family relationships. If you want step-relatives to share in your property, be sure your Will says so.

A gift to "my children" includes children born out of wedlock to the person making the Will. But a gift to a group of persons other than children of the person making the Will such as "my uncle's children" includes children born out of wedlock only if the child lived regularly as a minor in the household of his or her natural parent or the natural parent's parent, brother, sister, spouse or surviving spouse.

A gift to a group of persons such as "aunts," "uncles," "nieces," or "nephews," includes only those persons related by blood to the person who died. So it doesn't include in-laws.

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Is a person related by adoption considered a devisee?

Usually, unless the Will says differently. The following rules apply when someone has been adopted:

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What if a child is born to or adopted by the person after he or she makes the Will?

Such a child will receive a share of the estate of the person who died unless it is obvious that the person left the child out on purpose. Unless the Will says differently, the following rules apply:

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Can I leave my spouse out of my Will?

No. Even if the Will leaves a small amount or nothing at all to the spouse, your spouse is entitled to a minimum amount of your property. This amount is called the spouse's elective share. It is approximately equal to one-third of your probate property and nonprobate property after taking into account property the surviving spouse receives outside the Will. The surviving spouse receives the Homestead Allowance, Family Allowance and Exempt Property in addition to the elective share. A surviving spouse may also be entitled to an additional $50,000 in certain situations.

Calculating the exact amount of the elective share is very complicated. Both the surviving spouse and the Personal Representative should see his or her own probate lawyer if the Will leaves the surviving spouse a small amount or nothing at all.

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Can I leave someone other than my spouse out of my Will?

Yes. You can leave anyone out of your Will, even a child. You must make it clear in your Will that you meant to leave out the person. You do not have to leave a small amount, such as one dollar, to the person for the Will to be effective.

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What if the person who died divorced after he or she made the Will and the spouse is still included in the Will?

Divorce automatically cancels all gifts to the spouse and the spouse's relatives (other than the relatives of the person making the Will). The property passes as if the spouse and the spouse's relatives disclaimed it. Divorce also automatically cancels all appointments of the spouse and the spouse's relatives to positions such as Personal Representative, Trustee and Guardian.

If a person wants to give property to a former spouse or a former spouse's relatives or wants a former spouse or former spouse's relative to act as the Personal Representative, Guardian or Trustee, the person must make a new Will or a Codicil after the divorce.

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What if the person who died married after he or she made the Will and didn't include the new spouse in the Will?

Unless the Will says differently or there is evidence that the person who died did this on purpose, a surviving spouse receives a share of the estate equal to his or her normal share in intestacy (as if there was no Will). However, the share does not include property passing to a child (or the child's descendant) of the person who died, if the child was born before the marriage and is not a child of the surviving spouse.

The surviving spouse can choose instead to take the elective share if this is a larger amount.

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When should I see a probate lawyer to help me decide where the property of the person who died passes under a Will?

It is a good idea to talk to a probate lawyer if the person who made the Will did any of the following:

There are complicated rules that control who receives property under a Will in these and other situations. If you have any questions or if there are any unusual circumstances, you should talk to a probate lawyer.

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If the person who died gave property to a devisee before death, does this reduce the devisee's share?

Generally, no. The devisee will receive the gift of property made before the person's death and the property inherited after death. But the devisee's share will be reduced if one of the following applies:

If a gift of property made before the person's death reduces the devisee's share, the property is valued at the time the devisee received the property or on the date of the person's death, whichever comes first.

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If a devisee owed money to the person who died, does this reduce the devisee's share?

Yes. For example, if a child owed money to a parent before death but did not pay the loan back, the child's share is reduced by the amount of the debt.

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What if the Will does not dispose of all of the person's property?

A properly prepared Will should direct where all of the person's property goes. If it does not, the remaining property passes to the person's heirs through partial intestacy (as if there was no Will). A Will can limit who will inherit property in the case of intestacy.

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Where should I keep my original Will?

It is very important to safeguard the original Will. If you lose it, your Personal Representative can try to probate a copy using the formal probate process but it will be much more difficult and it may not work.

You should consider doing one of the following things with your original Will:

You should never store your Will in a safe deposit box because a court order will be needed to drill the box open if there is no surviving person with access to the box. Be sure to tell someone you trust or the Personal Representative named in your Will where the original is. You can also write the location of the original on a copy of Your Will.

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Who has the right to the original Will after the person's death?

After a person dies, anyone holding the original Will must give it to an interested person who is able to open a probate. If the person refuses to turn over the Will, he or she can be personally responsible for damages.

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Can someone challenge a Will?

Generally, to challenge a Will, you must prove one of the following:

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How can someone challenge a Will?

A Will can only be challenged in formal probate. Will contests can be long, complicated and expensive. It is a good idea to try to first work out any difficulties with the Personal Representative and other devisees under the Will.

If you cannot work things out, you must file a petition in formal probate telling the court why you object to the Will. If the court has already admitted the Will to informal probate, you must file a petition asking the court to change the proceeding to formal probate. The court will hold at least one hearing and listen to both sides. Either side has the right to ask for a jury trial and have a jury decide whether the Will is valid or not.

A Will contest can be as complicated and involved as litigation. The parties can ask for discovery, take depositions, attend mediation, subpoena witnesses and present evidence to a court or a jury. The type of evidence needed depends on the type of challenge to the Will. Examples of evidence include sworn statements (affidavits), documents, handwriting samples, doctor reports, mental health reports and testimony of persons in court. If you want to challenge a Will, it is a good idea to talk to a lawyer.

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Can I include a penalty clause to prevent anyone from challenging my Will?

Yes, but it will not always work. A penalty clause usually says that if a person challenges a gift under the Will or any part of the Will, that person will take nothing. But if the person reasonably believes that the challenge is necessary, the penalty clause will not apply.

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What probate process should I use if the person died with a Will?

Which probate process to use if the person died with a Will depends on the specifics of the situation. Most cases use the informal process if there are no disputes about the personal representative or the Will. If there are disagreements in these areas, use the formal process. If the person’s estate meets certain conditions, you may not need to open a probate case and instead can use the Affidavit for Collection of Personal Property process which is an out-of-court process.

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Rev. 9 December 2014
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