Answers to Frequently Asked Last Will and Testament Questions
A Last Will and Testament does not transfer property or assets until after the death of the maker of that Will.
But a person who is named Attorney-in-Fact by a Power of Attorney document can manage the assets of a Principal, so long as ‘best interest’ is applied.
Many states have laws that prevent one spouse from disinheriting another spouse within a Last Will and Testament. As such, it may be wise to wait until the Divorce proceedings are finalized to create a new Last Will and Testament.
Typically, the words ‘per stirpes’ or ‘per capita’ are used directly within the language of a well-written Last Will & Testament document.
In most states, upon Divorce the law treats a former spouse as if he or she died before the Testator, i.e. the person making the Will.
But typically the remainder of the Will continues to be effective.
So generally, a former spouse of a Joint Will is treated as deceased and the children named in the Will remain as beneficiaries.
But not always.
Yes, for a married couple with individual Last Will and Testament documents, the Will of the first spouse to pass must be Probated. Once Probate is completed on that spouse’s Will, only the remaining Will document would still be in force.
A Beneficiary Deed is a transfer-on-death instrument. That means when this form of Deed is used in conjunction with a Last Will and Testament, probate is avoided.
Banks do not accept a Last Will and Testament document as proof to provide access to funds in an account for obvious reasons.
If a real estate property has been properly assigned via Quitclaim Deed to any other person, that property is no longer an asset of the person who gave it away.
Generally, if a Last Will and Testament cannot be found after the death of a family member (or even a copy of the original Will document), it may be presumed that the person died intestate, i.e. without a Will.
The answer to this question would depend on a number of factors: