Legal Last Will and Testament for Married person with Minor Children from Prior Marriage
Note: This summary is not intended to be an all-inclusive discussion
of the law of wills in Wyoming, but does contain basic and other provisions.
A discussion of handwritten wills is not included.
Right to make and dispose; exception: Any
person of legal age and sound mind may make a will and dispose of all of
his property by will except what is sufficient to pay his debts, and subject
to the rights of the surviving spouse and children. 2-6-101.
All property deemed passed; "property" defined: A
will is construed to pass all property which the testator owns at his death
including property acquired after the execution of the will, unless a contrary
intention is indicated by the will. "Property", as used in this section,
includes both real and personal property, or any interest therein, and
means anything that may be the subject of ownership. 2-6-102.
Property passed may be governed by trust instrument: By
a will signed and attested as provided in this article a testator may devise
and bequeath real and personal estate to a trustee of a trust which is
evidenced by a written instrument in existence when the will is made and
which is identified in the will, even though the trust is subject to amendment,
modification, revocation or termination. Unless the will provides otherwise
the estate so devised and bequeathed is governed by the terms and provisions
of the instrument creating the trust including any amendments or modifications
in writing made before or after the making of the will and before the death
of the testator. 2-6-103.
Law governing meaning and effect: The meaning
and legal effect of a disposition in a will is determined by the law of
the state in which the will was executed, unless the will otherwise provides
or unless the application of that law is contrary to the public policy
of this state otherwise applicable to the disposition. 2-6-104.
Rules of construction and intention: The
intention of a testator as expressed in his will controls the legal effect
of his dispositions. The rules of construction expressed in the succeeding
sections of this article apply unless a contrary intention is indicated
by the will. 2-6-105.
Antilapse; deceased devisees; class gifts: If
a devisee who is a grandparent or a lineal descendent of a grandparent
of the testator is dead at the time of execution of the will, fails to
survive the testator, or is treated as if he predeceased the testator,
the issue of the deceased devisee take in place of the deceased devisee
and if they are all of the same degree of kinship to the devisee they take
equally, but if of unequal degree then those of more remote degree take
per stirpes. One who would have been a devisee under a class gift if he
had survived the testator is treated as a devisee for purposes of this
section whether his death occurred before or after the execution of the
will. 2-6-106.
Failure of a testamentary provision:
(a)
Except as provided in W.S. 2-6-106, if a devise other than a residuary
devise fails for any reason, it becomes a part of the residue.
(b) Except as provided in W.S. 2-6-106, if the residue is
devised to two (2) or more persons and the share of one (1) of the residuary
devisees fails for any reason, his share passes to the residuary devisee,
or to other residuary devisees in proportion to
their interests in the residue. 2-6-107.
Will to be in writing; number and competency of witnesses; signature
of testator; subscribing witness not to benefit; exception: Except
as provided in the next section [§ 2-6-113], all wills to be valid
shall be in writing, or typewritten, witnessed by two (2) competent witnesses
and signed by the testator or by some person in his presence and by his
express direction. If the witnesses are competent at the time of attesting
the execution of the will, their subsequent incompetency shall not prevent
the probate and allowance of the will. No subscribing witness to any will
can derive any benefit therefrom unless there are two (2) disinterested
and competent witnesses to the same, but if without a will the witness
would be entitled to any portion of the testator's estate, the witness
may still receive the portion to the extent and value of the amount devised. 2-6-112.
Self-proving wills: A will may be made sefl proved
by appropriate form. The form you located containes the appropriate affidavit.
2-6-114.
Who may witness: Any person generally competent
to be a witness may act as a witness to a will. 2-6-115.
Validity of execution: A written
will is valid if executed in compliance with W.S. 2-6-112 or 2-6-113 or
if its execution complies with the law at the time of execution of the
place where the will is executed, or of the law of the place where at the
time of execution or at the time of death the testator is domiciled, has
a place of abode or is a national. 2-6-116.
Revocation by writing or by act: (a)
A will or any part thereof is revoked:
(i) By a
subsequent will which revokes the prior will or part expressly or by inconsistence;
or
(ii) By being burned, torn, cancelled, obliterated or destroyed
with the intent and for the purpose of revoking it by the testator or by
another person in his presence and by his direction. 2-6-117.
Revocation by divorce or annulment; effect; revival; other changes
excluded: If after executing a will the testator
is divorced or his marriage annulled, the divorce or annulment revokes
any disposition or appointment of property made by the will to the former
spouse, any provision conferring a general or special power of appointment
on the former spouse, and any nomination of the former spouse as executor,
trustee, conservator or guardian, unless the will expressly provides otherwise.
Property prevented from passing to a former spouse because of revocation
by divorce or annulment passes as if the former spouse failed to survive
the decedent, and other provisions conferring some power or office on the
former spouse are interpreted as if the spouse failed to survive the decedent.
If provisions are revoked solely by this section, they are revived by testator's
remarriage to the former spouse. For purposes of this section, divorce
or annulment means any divorce or annulment which would exclude the spouse
as a surviving spouse. A decree of separation which does not terminate
the status of husband and wife is not a divorce for purposes of this section.
No change of circumstances other than as described in this section revokes
a will. 2-6-118.
Duty of custodian to deliver will; failure to comply; order to
third persons:
(a) Every custodian of a will,
within ten (10) days after receipt of information that the maker thereof
is dead, shall deliver the same to the clerk of the district court having
jurisdiction of the estate or to the executor named therein. A failure
to comply with the provisions of this section makes the person failing
responsible for all damages sustained by anyone injured thereby.
(b) If it is brought to the attention of the court that any
will is in the possession of a third person, and the court or the commissioner
in vacation is satisfied that the information is correct, an order shall
be issued and served upon the person having possession of the will, and
if he neglects or refuses to produce it in obedience to the order he may
be punished by the court for contempt. 2-6-119.
Notification of executor; disposition where no petition filed:
Upon receipt of a will for filing, with information that the maker
thereof is dead, the clerk shall notify the party, if any, named as executor
of the will, and as many of the distributees named therein as may be readily
located. If no action pursuant to W.S. 2-6-121, 2-6-122 or 2-6-201 is taken
by any party within thirty (30) days after the giving of such notice, the
clerk shall report the matter to the court and the court may make orders
as it deems appropriate for the disposition of the will. 2-6-120.
Petition and procedure for filing of will without probate or
administration:
(a) Concurrently with the filing
with the clerk of a will of a deceased person, or at any time thereafter,
the executor or any distributee named therein may file a sworn petition
for filing of the will without probate or administration. The petition
shall show:
(i) The date and place of death of
the decedent, and county and state of last residence of the decedent;
(ii) The names, ages and residences of the heirs and devisees
of the decedent, so far as known to the petitioner;
(iii) That a true copy of the will and a true copy of the
petition have been mailed to each of the heirs and devisees; and
(iv) That, pending possible subsequent action, the petition
and the will are to be filed and indexed by the clerk, without further
proceedings.
(b) The clerk shall receive, file and index the petition,
and annex the will thereto, and maintain same as part of the permanent
files. No filing fee shall be charged.
(c) No proceedings under this section may be commenced after
the filing of a petition under W.S. 2-6-122 or 2-6-201, nor after the entry
of an order by the court pursuant to W.S. 2-6-120 making other provisions
for the disposition of the will. 2-6-121.
2-6-122. Petition and procedure for filing and probate
of will without administration:
(a) Concurrently with the filing with the clerk of a will
of a deceased person, or at any time thereafter prior to the filing of
a petition pursuant to W.S. 2-6-201 and prior to the entry of any order
by the court pursuant to W.S. 2-6-120 making other provisions for the disposition
of the will, any party who would be entitled to letters testamentary under
the provisions of W.S. 2-6-208 may file with the clerk a sworn petition
for probate of will without administration. The petition shall show:
(i) The date and place of death of the decedent, and county
and state of last residence of the decedent;
(ii) The names, ages
and residences of the heirs and devisees of the decedent;
(iii) That
a true copy of the will and a true copy of the petition have been mailed
to each of the heirs and devisees; and
(iv) That the petition prays
for probate of the will, without administration.
(b) A filing fee for the petition shall be charged, equal
to the minimum fee applicable to proceedings under W.S. 2-6-203.
(c) Upon the filing of the petition, proceedings shall be
had as provided in W.S. 2-6-203 through 2-6-206, and order shall issue
and notices be given as provided in W.S. 2-6-209 if the will is found entitled
to probate, except that the order shall not include the appointment of
an executor, but recite that the will is admitted to probate without administration.
(d) After the entry of the order admitting the will to probate,
the petitioner shall, at his own expense, cause to be published once a
week for three (3) consecutive weeks in a daily or weekly newspaper of
general circulation in the county in which the probate was granted a notice
in substantially the following form:
State of Wyoming
) In the District Court
) ___ Judicial District
County of __________ )
Probate No. _____
In the Matter of the ) Notice
of Proof of
Estate of _______________)
Will Without
Administration
_______, Deceased. )
TO ALL PERSONS INTERESTED IN SAID ESTATE:
You are hereby notified that on the ____ day of ____, (year), the
Last Will and Testament of Decedent was admitted to probate by the above
named court and there will be no present administration of the estate.
Any action to set aside the Will shall be filed in the Court within three
(3) months from the date of the first publication of this notice, or thereafter
be forever barred.
Dated ____, (year).
Proponent ______________
PUBLISH: (once a week for three (3) consecutive weeks)
(e) The provisions of W.S. 2-6-301 through 2-6-306 apply to
proceedings under this section.
(f) In the event administration of the estate is desired at
any later date, any party designated in W.S. 2-6-208, in the order of preference
set forth therein, may petition the court for the issuance of letters testamentary.
Filing of will, with or without probate not to bar collection
by affidavit: No proceedings pursuant to W.S. 2-6-120
through 2-6-122 shall bar any proceedings pursuant to W.S. 2-1-201 through
2-1-203. 2-6-123.
Written statement referred to in will disposing of certain personal
property:
(a) A will may refer to a written
statement or list to dispose of items of tangible personal property not
otherwise specifically disposed of by the will, other than money, evidences
of indebtedness, documents of title, securities and property used in trade
or business. To be admissible under this section as evidence of the
intended disposition, the writing shall:
(i) Be
dated;
(ii) Be in the handwriting of the testator or signed by him;
and
(iii) Include a description of the items and devisees with
reasonable certainty.
(b) The written statement or list may be prepared before
or after execution of the will, and may be altered by the testator after
its preparation which alteration shall be signed and dated by the testator.
(c) The written statement or list may be a writing which
has no significance apart from the effect upon the disposition made by
the will. 2-6-124.
