Probate, Estate Planning,

An overview on probate laws.

Will (law), in law, disposition by an individual of his or her property, intended to take effect after death. A disposition of real property by will is termed a devise; a disposition of personal property by will is termed a bequest. The person making a will, called the testator, must have testamentary capacity, that is, must be of full age and sound mind and must act without undue influence by others.

No disposition of an estate is made after the testator's death until the will is probated. The probate of a will is a court proceeding up on notice to the heirs and next of kin. Questions frequently arise about the construction of the terms of a will. The most important rule of construction is that the intention of the testator as it appears from the will shall be carried out whenever legally possible; when the will is ambiguous, the circumstances surrounding its execution may be examined in order to ascertain the testator's intention.

The statutes of each state must be consulted as to restrictions on a testator's disposition of his or her property by will. In many jurisdictions a will may not exclude a surviving spouse. The degree of participation of the spouse in the estate varies from state to state. Many jurisdictions, however, permit a person to exclude children from participation in the estate.

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