A Brief Introduction of Statutory Will
What is a statutory will?
In some cases, an individual can lose the capability to make any informed decisions for themselves. Though some decisions can be made on behalf of an attorney, other decisions, such as making a will, can only be made by the courts.
A will made by the court on behalf of someone is known as a ‘Statutory Will’.
Conditions such as dementia or intellectual disabilities hinder the capacity to understand all that is necessary to make a Will. Thus, a court can aid such situations with a Statutory Will.
Who Takes the Statutory Will?
A statutory will can be created by any person who is of sound mind and who is above the age of eighteen. The person making a will is known as a “testator.” A Statutory Will is a Will made for a person by a Court in circumstances where the person does not have the mental capacity to make the Will for themselves.
Purpose of the Statutory Will
The purpose of a statutory will is to provide an easy and free estate planning tool for every person. Such will forms can be easily accessed by any person, and a will can be created within a few minutes. However, since these forms are very basic. They can be used in a situation of emergency where the person does not have time to create a long, detailed will and contact a lawyer. Such forms can also be used in case the person has a small estate and wishes to create a basic will that gives effect to his intentions.
There are only a handful of states which provide statutory will forms. One of these is the statutory will California, which can be used by the residents of California.
Contents of the Statutory Will
A statutory will is a simple form that contains blanks that must be filled in and check-mark boxes to add all the information of the person making the Will. The information that is required to be filled in the form includes
- The name of the person and information about who is making the Will and the name and information of the beneficiary or beneficiaries under the Will.
- Additionally, the amount of each bequest will have to be mentioned.
- The name of the person who shall act as executor of the Will, which is an important part of any will.
- A section that provides for any gift to charities that the person may wish to make.
At the end of the form, there will be a section for the witnesses to sign the document. The names and addresses of the witnesses will have to be mentioned. Lastly, there is a section that helps the person drafting the Will to affix his signature.
How to Draft the Statutory Will?
The following steps need to be followed while drafting a statutory will:
- The person making the Will has first to determine the persons to whom he wishes to make a bequest under the Will.
- He will then have to decide the amount of the bequest for each beneficiary under his Will.
- Once he has determined all such important details, he needs to fill out the form and enter all the information that is required as part of the form. If he is a resident of California, he can use the statutory Will of California.
- Once the form has been filled, the person must verify all the details to make sure they are accurate. This includes the names and addresses of the beneficiaries to avoid any confusion at a later stage.
The testator must then sign the Will in the presence of at least two witnesses. The witnesses will then have to sign the Will.
Negotiation Strategy
It is not a bilateral document, and hence there is no negotiation required. There is no negotiation where a will is concerned. The testator makes a will in an individual capacity.
Benefits and Drawbacks of the Statutory Will
The following are the benefits and drawbacks of a statutory will:
- A major benefit of this statutory will form is that it is free of cost and hence can be used by anyone.
- The form is a simple one and can be filled out by the person on his own. There is no need to contact a lawyer for this purpose.
- Since this will form is created by the government, it is recognized by the probate court. Also, since the language used in the Will is standard, there is less possibility of the will being challenged at a later stage.
- A huge drawback of this form is that a person cannot tailor it to his specific needs. He merely has to fill in the blanks that are provided in the form. Hence they are not recommended in case the estate of the testator is complicated or large.
What Happens in Case of Violation?
There may be a situation where the executor of the Will violates the terms of the Will(1). This may happen if he does not disclose certain assets of the estate or if he does not carry out the terms of the Will. This is a breach of the executor’s fiduciary duty, and he will be held liable for the same. The beneficiaries have the option of removing the executor by filing a petition in court.
If there is evidence that any fraud was committed by the executor or he failed to follow the terms of the Will, the court may remove such executor and appoint a new one. The executor may also be liable to pay damages in case of such fraud and breach of duty.
In conclusion, a statutory will can be very useful for a person who wishes to create a will in a simple way without hiring a lawyer for the same. It is a very quick process, and by using such a form, a will can be made very easily.