WILLS
Whether farmer, manufacturer, merchant or professional man, and
whether in youth, mid-age or declining years, every owner of
personal or real property, or both, should make a will.
If you have not made a will, get over the foolish notion that it
is a premonition of death, and do so at once.
A will is a written and signed declaration of the disposition one
wishes to have made of his property in the event of his death.
The maker of a valid will must be of sound mind and not less than
twenty-one years of age.
Women, whether married or single, if of proper age, are competent
to make a will.
OF TWO KINDS
A will may be written or unwritten.
Unwritten wills are known as "nun-cupative." Nun-cupative wills
are employed only when through accident, or sudden seizure by a
fatal disease, the time necessary to write and sign a will cannot
be had.
The unwritten will must be authenticated by reliable and
unprejudiced witnesses, and generally it can dispose of personal
property only.
In the written will no precise form is necessary, though when
drawn by a lawyer it usually begins with some such form as: "I,
George Brown, being of sound mind and good understanding, do make
and declare this to be my last will and testament", etc.
A will is not necessarily permanent. It may be cancelled or
changed in any way by the maker before his death, or a new will
can be made.
The last will cancels all preceding wills.
An addition to an existing will is known as a "codicil."
A man making a will is called a testator.
A woman making a will is called a testatrix.
LIMITATIONS OF WILLS
A man has a right to dispose of his property by will or gift as he
chooses, but if he is married the law compels him to consider the
rights of another.
The husband cannot, by will or otherwise, deprive his wife of her
"right of dower" in his real estate and appurtenances.
Unless she chooses to accept, the wife need not accept other
property that is bequeathed her in lieu of dower.
The wife's dower interest in her husband's estate is a life
interest only. On her death it goes to the husband's heirs, as if
there had been no widow.
In some states there is no right of dower.
HOW TO MAKE A WILL
The will not only shows the purpose of the testator, but it serves
as a bar to litigation among the natural heirs.
Any man or woman can write out his or her will, but unless quite
familiar with such work it is better to employ a lawyer for the
purpose.
The person named in the will to carry out the purpose of the
testator is known as the "executor".
No person, not twenty-one at the time the will is proved can act
as an executor.
Neither a convict, an imbecile, nor one known to be a drug fiend
or an habitual drunkard, is eligible for the post of an executor.
If an executor be appointed against his will, the law does not
compel him to serve.
There must be at least two witnesses to a will, some states
require three.
The witnesses need not know the contents of the will, but they
must understand before signing that it is a will, and they must
see it signed by the testator.
Under the common law the will is void if the witnesses are
beneficiaries.
In some states a will so witnessed is valid, except that the
witnesses cannot receive their legacies.
All the witnesses should sign at the same time and add their
addresses.
If an heir at law, say a child, is not mentioned in the will, the
law assumes that he was forgotten by the testator and generally
gives the share the heir would be entitled to if there were no
will.
At the end of the will the testator, in the presence of the
witnesses, should write his name in full.
AN EXECUTOR'S DUTIES
An executor is the legal representative of the testator. It is his
duty to see that the provisions of the will are carried out.
No man is qualified to act as executor who is not competent to
make a will. Executors, unless relieved by the provisions of the
will, are required to file bonds, proportioned to the value of the
estate, for the faithful performance of their duties.
Should there be no executor named in the will, or if the person so
named refuses to act, or if he dies or resigns, the court will
appoint a person to act in his place.
The executor appointed by the court is known or called an
"administrator with the will annexed."
In some states the court having jurisdiction of wills and estates
of deceased is known as "the probate," in others it is called the
"Surrogate's Court," and in still others, "The Orphan's."
ADMINISTRATORS AND THEIR DUTIES
If a man, owning property, dies without making a will, the judge
of the proper court will appoint an administrator to settle the
estate.
This is the method of procedure:
1. A person, interested in getting the estate settled, goes before
the proper judge and asks him to appoint an administrator.
2. The administrator must give the same bond as an executor. Their
duties are the same.
3. In settling the estate the administrator is governed by the
law, and by the special directions of the officer having
jurisdiction in such matters.
4. He must make a careful list of all the property belonging to
the estate. The value of the personal property is estimated by men
specially appointed by the court for the purpose and known as
"appraisers".
5. The administrator must account for every item of property that
comes into his possession.
6. All debts of deceased must be first paid, including funeral
expenses. If the proceeds of the personal property are not
sufficient for this purpose, the administrator may, if there be
real estate, sell the whole or part of it, on an order from the
court.
DEBTS
Debts must be paid in an order prescribed by law. The following is
the usual order:
1. Funeral expenses and expenses of last illness.
2. The widow's allowance or award.
3. Debts due the state or municipality.
4. Claims of other creditors.
Whatever property is left, after paying these obligatory sums, is
divided among the rightful heirs under the direction of the court,
and in the manner provided by law.
The administrator must advertise, in one or more county papers the
fact that he has been appointed to settle the estate of the
deceased, whose name is given, and he must ask that all claims be
presented within a given period, usually fixed at six months.
When the estate is settled to the satisfaction of the court, the
same authority releases the administrator and his bondsmen.
All the fees connected with the settlement are regarded as debts
and must be paid from the proceeds of the estate before closing.
THE FINAL SETTLEMENT
When the debts are paid and the residue divided among the heirs,
the administrator files his account. If it is allowed the case
ends.
The parties of interest in an estate may agree to settle it out of
court. This saves expense, but it is not the safest way.