Alaska Court System Self-Help

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:

• Written.
• Made by a person 18 years or older.
• Made by a person of sound mind.
• Signed by the person making the Will.
• Signed by two witnesses within a reasonable time after they watch the person sign the Will or after the person making the Will tells the witnesses that the signature on the Will is their signature.

The person making the Will can sign the Will any way they choose, 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 them, 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 they saw. A person can act as a witness even if they are related to the person making the Will or receives a gift under the Will. It is best if the person making the will is aware the witnesses are acknowledging it.

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

• Decide who receives your property at death, how they receive it and in what amounts.
• Name a Personal Representative.
• Waive bond for the Personal Representative.
• Name a Guardian for minor children.
• Create a trust.
• Refer to a tangible personal property memorandum.

You may want 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.

If you are preparing a will yourself, you can watch short presentations on:

• Preparing Your Own Will
• The First Four Sections of a Will
• The Gift Section
• Survival Period and Remains
• Signature and Witnessing
• Summary and Helpful Tools
• Special Issues for Alaskans
• Special Protections for Family Members

A Codicil is a document that changes, rather than replaces, a previously executed Will. The Codicil is considered to be part of the original Will. Each Codicil must include the same legal requirements as the original Will, including

• the signature of the person making the Will who is 18 years or older
• that the person is of sound mind, and
• the signatures of two witnesses.

If a person makes more than one Codicil, they are all read together with the Will.

A later Codicil cancels any earlier Codicils if any of the following are true:

• The new Codicil says that it cancels the old Codicil.
• The new Codicil conflicts with the old Codicil.
• The person does something to the Codicil on purpose to cancel it, such as burning it or tearing it up.

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

• Leave all of your property to your spouse. Without a Will, your spouse usually must share your property with your children, grandchildren or parents.
• Leave property to a partner to whom you are not married.
• Leave property to friends.
• Leave property to charity.
• Leave property in unequal shares, such as more or less to one particular child.
• Leave property in trust so that a person does not inherit the property all at once.
• Prevent certain persons from inheriting your property such as a child, grandchild or sibling.

A Personal Representative is in charge of the probate process. They gather 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 they 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.

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 their own property.

If you do not waive bond (and the court does not waive it) your Personal Representative must post bond before they can begin the probate process. This means that they must pledge either cash or property to the court to guarantee that they 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 they cannot collect waivers from every person, they must post bond.

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 they turn 18. You may want to ask the person if they are willing to be the Guardian.

If both parents die and neither parent appoints a Guardian in their Will, family members or even friends may argue about who should raise your child and manage their 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 them stability and makes sure that someone you know and trust will take care of them.

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 appoint a Guardian of the incapacitated person (ward) in their will. 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.

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 they desire.

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

A Will can refer to a list that leaves tangible personal property, but not money 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:

• The Will must refer to the list.
• The list must be signed.
• The list must clearly describe the property to be given away.
• The list must identify the persons who are supposed to receive the property.

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 without a Will (intestate).

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:

• Signed the Will voluntarily.
• Was 18 or older.
• Was of sound mind.
• Was not unfairly influenced by anyone or anything.

A Self-Proving Will is one where the person making the Will and both of the witnesses make a sworn statement that confirms the person met all of the legal requirements. These statements are usually attached to the Will and are often called a "self-proving affidavit". The affidavit and the will must be notarized. A Will that has these statements does not need to be "proved" by other documents or testimony in court.

A probate is more complicated if the Will is not a Self-Proving Will because you have to prove the Will met all the necessary conditions of a Will. You can file a sworn statement of a witness (an affidavit) that tells the court that the person who died met all of the necessary conditions. But if someone disagrees that the will met all the necessary conditions of a will, the court will take evidence about whether the Will is valid. One type of evidence is a witness testifying that the Will met all the necessary conditions but there may be other ways to prove this. When there is disagreement, you probably need a formal probate.

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

• A new Will says that it cancels the old Will.
• A new Will conflicts with the old Will.
• The person does something to the Will on purpose to cancel it, such as burning it or tearing it up.

The later Will if it cancels (revokes) any earlier Wills. If the new Will does not clearly say that it cancels the old Will, you will have to use the formal probate process so the judge can decide which controls.

Yes, but it depends on the relationship. A testator can gift items to a group of persons such as "children," "siblings" or "parents,".

Terms like brother, sister, niece, or nephew include those related by half blood, unless you clarify you do not want to include them. But those terms do 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 the children of the person making the Will such as "my uncle's children" does not include children born out of wedlock unless the child lived regularly as a minor in the household of their 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.

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

• A person who has been adopted inherits from their adoptive parents and not their natural parents.
• However, if the person is adopted by a natural parent's spouse, the adopted person (and their descendants) inherit from both the natural parents and the adoptive parent.
• If the child is not the adopted child of the person making the Will, the child must have lived regularly while a minor in the household of their adopting parent. For example, if the person who makes the Will leaves property to their sister's "children", a child adopted by the sister is only included in the gift if the child lived regularly while a minor in the sister's household.

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:

• If the person making the Will had no living children when they made the Will, a child later born to or adopted by the person receives a share equal to what the child would receive in intestacy (when there is no Will) unless the child's parent inherits all or most of the estate under the Will.
• If the person making the Will had one or more living children when they made the Will, and a child born to or adopted by the person after they make their will, the later child receives a share as equal as possible to earlier children.

Yes, however, 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.

The spouse may disclaim their interest in receiving the elective share, any allowances and exempt property, and would need to file a document with the court stating this. Read more about allowances and exempt property.

Calculating the exact amount of the elective share is very complicated. It is a good idea for both the surviving spouse and the Personal Representative should see their own probate lawyer if the Will leaves the surviving spouse a small amount or nothing at all.

You can state in your will that you are not leaving any estate property to your children. However, the law provides that the children of the person who died will receive allowances and exempt property from the estate. The children may disclaim their interest in receiving any allowances and exempt property, and would need to file a document with the court stating this. Read more about allowances and exempt property.

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.

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 their normal share in intestacy (as if there was no Will). However, the share does not include property given in the Will 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.

You may want to talk to a probate lawyer if the person who made the Will did any of the following:

• Left out a child.
• Left out their spouse.
• Adopted a child or had a child out of wedlock either before or after making the Will.
• Made a gift to a group of persons ("children," "nieces," "nephews," etc.) and one of those persons was adopted or born out of wedlock.
• Divorced after making the Will.
• Married after making the Will.
• Made a gift to any person who died before the person who made the Will died.

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 may want to talk to a probate lawyer.

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

• The Will says that it should be reduced;
• The person who died said in writing at the time of making the gift that it should reduce the devisee's share; or
• The devisee agreed in writing that the gift should reduce their share, even if this was after the gift was made.

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.

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.

A properly prepared Will should direct where all of the person's property goes. This often means it will have language that says something like, “Everything else goes to” someone. 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.

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:

• Deposit it with the court for safekeeping. You can file:
  • Agreement and Receipt for Deposit of Will, P-100
  The court will assign a case number that ends in “WI” such as 1WR-13-22457WI. The court’s public CourtView system will show your name and the case number. However, while you are alive, the Will is confidential and will only be released to you or to another person if you give permission in writing
• Keep it with your lawyer if he or she offers a vault service for storing documents.
• Keep it in a fireproof safe at home.

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.

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, they can be personally responsible for damages. An interested person can ask a court to order the holder to release the Will.

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

• Lack of testamentary intent
  The person did not intend the document to be a Will. For example, the document could have been a letter with instructions to create a Will.
• Lack of capacity
  The person did not understand how much and what type of property they owned or who would normally be included in a Will (the person's close relatives) even if the person excluded their close relatives. Or, the person could not understand that they were making a Will.
• Undue influence
  The person was manipulated, deceived or intimidated into making a Will so that the person could not make a free choice about how their property should pass under the Will.
• Fraud
  Someone deceived the person on purpose about the document they signed (such as pretending it was not a Will). Someone deceived the person on purpose about a situation (such as the death of a child) so that the person changed their mind about how the property should pass under the Will. Or, someone forged pages of the Will or the person's signature.
• Duress
  The person was forced or threatened into making the Will.
• Mistake
  The person made a mistake, such as signing another person's Will, assuming certain pages were in their Will when they were not, or believing someone was dead when they were not.
• Revocation
  The person who made the Will did something to cancel it (such as burning part of it), or they made a new Will which canceled the old one.
• Execution
  You can challenge whether the Will was made properly (for example whether the Will was signed or witnessed correctly). In this case, the person who supports the Will must ultimately prove that it was made properly.

A Will can only be challenged in formal probate. Will contests can be long, complicated and expensive. You may want 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, you may want to talk to a lawyer.

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 judge finds there was probable cause to challenge the Will, the penalty clause will not apply.

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.