The idea of a last will and testament is one that dates back to ancient Rome. The laws governing wills in the United States arose out of English common law. The concept was very clear to the Romans, and then to the English. A person has certain property rights in both land and personal possessions. With death being an inevitability of life, these cultures recognized the need to provide for a means by which an individual could name the beneficiaries of their worldly possessions in writing.
Many of the requirements of creating a will that were established in the 19th century in England are still part of the legal requirements in most states. A will must be signed by the person creating it and that person must have the capacity to do so. In addition, the will must be witnessed by uninvolved parties and methods for revocation must be specified.
Some states even allow for something called a “holographic” will, or a will that is handwritten by the testator, and does not require witnesses. The reasoning being that if it is handwritten, there could be no question as to the capacity or influence on the person writing in their own hand. Maryland does not recognize holographic wills.
Because of the importance of wills and the fact that they are often the only record of a person’s intent, the probate court was established as a protection for the deceased. The probate court supervises the enforcement of the will to ensure that the deceased’s wishes are being carried out. Because the deceased cannot speak for themselves, court supervision serves as a neutral party to ensure compliance with the will’s terms. Unfortunately, probate has gotten to be unreasonably time consuming and expensive for most estates. There are a range of probate avoidance tools that can go above and beyond a simple will to minimize these difficulties.
If you would like to learn more about wills, probate, and probate avoidance, contact your estate planning attorney.