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Wills

A will is a legal document you use to dispose of your property at your death. It may also name people to do important jobs, such as administrator of your estate or guardians for your children. The maker of the will is called the testator. To be valid, a will must comply with specific legal requirements. If you die without a will, the intestacy law of the state where you were domiciled at death will determine who should receive your property. Your domicile is the state where you are a legal resident and is not necessarily the state where you resided or lived before your death. If you leave no valid will, the estate will be divided according to the "intestacy statutes." This generally means your spouse and child(ren) inherit your property or estate. If you die without a surviving spouse or child(ren), under State law certain other blood relatives receive the estate. This division can become complicated. These same laws also specify who will be in charge of the estate (called your personal representative or executor) and guides a judge in deciding who will be guardians for children. Little flexibility in these laws exists to provide for special needs or family security -- a good case for being sure to write a will.

Floyd D. Spence National defense authorization act
On October 30, 2000, President Clinton signed the Floyd D. Spence National Authorization Act for Fiscal Year 2001. Included within the act is Section 551, providing for a “military testamentary instrument” and exempting such instruments from state law formalities. The statute was codified in 10 U.S.C. § 1044d.

A. Text of Act

§ 1044d. Military testamentary instruments: requirement for recognition by States

(a) Testamentary instruments to be given legal effect.--A military testamentary instrument--

(1) is exempt from any requirement of form, formality, or recording before probate that is provided for testamentary instruments under the laws of a State; and

(2) has the same legal effect as a testamentary instrument prepared and executed in accordance with the laws of the State in which it is presented for probate.

(b) Military testamentary instruments.--For purposes of this section, a military testamentary instrument is an instrument that is prepared with testamentary intent in accordance with regulations prescribed under this section and that--

(1) is executed in accordance with subsection (c) by (or on behalf of) a person, as a testator, who is eligible for military legal assistance;

(2) makes a disposition of property of the testator; and

(3) takes effect upon the death of the testator.

(c) Requirements for execution of military testamentary instruments.--An instrument is valid as a military testamentary instrument only if--

(1) the instrument is executed by the testator (or, if the testator is unable to execute the instrument personally, the instrument is executed in the presence of, by the direction of, and on behalf of the testator);

(2) the instrument is executed in the presence of a military legal assistance counsel acting as presiding attorney;

(3) the instrument is executed in the presence of at least two disinterested witnesses (in addition to the presiding attorney), each of whom attests to witnessing the testator’s execution of the instrument by signing it; and

(4) the instrument is executed in accordance with such additional requirements as may be provided in regulations prescribed under this section.

(d) Self-proving military testamentary instruments.--

(1) If the document setting forth a military testamentary instrument meets the requirements of paragraph (2), then the signature of a person on the document as the testator, an attesting witness, a notary, or the presiding attorney, together with a written representation of the person’s status as such and the person’s military grade (if any) or other title, is prima facie evidence of the following:

(A) That the signature is genuine.

(B) That the signatory had the represented status and title at the time of the execution of the will.

(C) That the signature was executed in compliance with the procedures required under the regulations prescribed under subsection (f).

(2) A document setting forth a military testamentary instrument meets the requirements of this paragraph if it includes (or has attached to it), in a form and content required under the regulations prescribed under subsection (f), each of the following:

(A) A certificate, executed by the testator, that includes the testator’s acknowledgment of the testamentary instrument.

(B) An affidavit, executed by each witness signing the testamentary instrument, that attests to the circumstances under which the testamentary instrument was executed.

(C) A notarization, including a certificate of any administration of an oath required under the regulations, that is signed by the notary or other official administering the oath.

(e) Statement to be included.--

(1) Under regulations prescribed under this section, each military testamentary instrument shall contain a statement that sets forth the provisions of subsection (a).

(2) Paragraph (1) shall not be construed to make inapplicable the provisions of subsection (a) to a testamentary instrument that does not include a statement described in that paragraph.

(f) Regulations.--Regulations for the purposes of this section shall be prescribed jointly by the Secretary of Defense and by the Secretary of Transportation with respect to the Coast Guard when it is not operating as a service in the Department of the Navy.

(g) Definitions.--In this section:

(1) The term “person eligible for military legal assistance” means a person who is eligible for legal assistance under section 1044 of this title.

(2) The term “military legal assistance counsel” means--

(A) a judge advocate (as defined in section 801(13) of this title); or

(B) a civilian attorney serving as a legal assistance officer under the provisions of section 1044 of this title.

(3) The term “State” includes the District of Columbia, the Commonwealth of Puerto Rico, the Commonwealth of the Northern Mariana Islands, and each possession of the United States

 


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