WHAT IS A WILL?
The basic estate planning document is the will, or Last Will and Testament of a person. The Uniform Probate Code provides a definition:
“Will” includes codicil and any testamentary instrument that merely appoints an executor, revokes or revises another will, nominates a guardian, or expressly excludes or limits the right of an individual or class to succeed to property of the decedent passing by intestate succession. Section 1-201 (56).
That is a lot of words to say a will is a document that states what you want to happen to your property after you die.
There are more things a will can do; it can determine who is appointed guardian of your kids, what happens to your pets, it can create trusts for minors, and more. It can also provide a bit of control after you pass. You can provide gifts to people and condition them on something happening or not happening. For example, I leave Joe $1,000 if he attains the rank of Eagle Scout in Boy Scouts. This is a gift that requires Joe to do something to receive it. If he doesn’t meet the requirements it can go to another or fall back to the estate.
WHO CAN MAKE A WILL?
To create a will there has to be two mental elements; testamentary capacity and testamentary intent.
In Vermont, “a person of age and sound mind may devise, bequeath and dispose of his estate, real and personal, and of any right or interest which he has in any real or personal estate, by his last will and testament, and the word “person” shall include a married woman” (Title 14 VSA 1). In Vermont, a person of age is a person at least 18 years of age.
I am sure you are probably thrown for a loop a bit with the addition that a “person” includes a married woman. These statutes were written a long time ago and to ensure fair treatment, items like this needed to be added.
In Vermont, testamentary capacity it, basically, a person of age and sound mind. But what about testamentary intent? This isn’t defined in Vermont, but it is typically the intent that the document (will) control events at the maker’s death, but not create any rights or powers until that time.
WHAT MAKES A WILL VALID?
In Vermont, a will must be in writing, signed by the testator (maker of the will) and attested to in the presence of two or more credible witnesses in the presence of the testator and each other.
Holographic wills are not explicitly allowed or explicitly disallowed in Vermont. Holographic wills are typically handwritten by the testator with no witnesses signing.
Wills are an important, basic planning document of end of life. It helps ensure property goes to who you choose. If you have young children, it provides a method to appoint and select a guardian and back-up guardian for them in the case of both parents have passed.