Last Will and Testament for Divorced person not Remarried with Minor Children
Note: This summary is not intended to be an all-inclusive
discussion of the law of wills in Rhode Island, but does contain basic
and other provisions. A discussion of handwritten wills is not included.
Who May make a will: Every person of sane mind and
eighteen (18) years or older in age, may devise, bequeath, or dispose of,
by his or her will, executed in the manner required by this chapter, all
real estate and all personal estate, which he or she shall be entitled
to either at law or in equity at the time of his or her death and which,
if not so devised, bequeathed or disposed of, would devolve upon the heir
at law, or upon his or her executor or administrator, but not including
an estate tail.
33-5-2
Nomination of guardian by will: Every person authorized
by law to make a will may nominate by his or her will a guardian or guardians
for his or her children during their minority, and a successor guardian
or guardians for persons who are retarded for whom he or she had been appointed
guardian during his or her lifetime, and the probate court shall appoint
the guardian or guardians unless good cause be shown to the contrary; provided,
that, in the case of husband and wife, the survivor, being otherwise qualified,
shall be the guardian of their children. 33-5-4
Execution of will: A will shall be in writing and signed
by the testator, and this signature shall be made or acknowledged by the
testator in the presence of two (2) or more witnesses present at the same
time, and the witnesses shall attest and shall subscribe the will in the
presence of the testator, but no form of attestation shall be necessary,
and no other publication shall be necessary. 33-5-5
Wills conforming to laws of other states: Any last
will and testament executed outside this state in the mode prescribed by
the law, either of the place where executed or of the testator's domicile,
shall be deemed to be legally executed, and shall be of the same force
and effect as if executed in the mode prescribed by the laws of this state;
provided, the last will and testament is in writing and subscribed by the
testator. 33-5-7
Revocation of will by marriage: The marriage of a person
shall act as a revocation of a will made by him or her previous to the
marriage, unless it appears from the will that it was made in contemplation
thereof. 33-5-9
Revocation of provision in will for divorced spouse: The
entry of a final judgment in the divorce of a person shall act as a revocation
of all provisions for the benefit of the former spouse in a will made by
the person prior to the divorce, unless it appears from the will that the
will was made in contemplation of the divorce. All other provisions in
the will shall take effect as though the former spouse had predeceased
the person. 33-5-9.1
Methods of revoking will: A will may be revoked by
another will or codicil executed in the manner required by law, or by some
writing declaring an intention to revoke the will and executed in the manner
in which a will is required to be executed, or by burning, tearing, or
otherwise destroying the will by the testator, or by some person in his
or her presence and by his or her direction, with the intention of revoking
the will. 33-5-10
Deposit with probate clerk: A will may be deposited
by the testator, or by any person for him or her, in the office of the
probate clerk in the city or town where the testator lives, to be safely
kept until delivered or disposed of as hereinafter provided; and the probate
clerk, upon being paid a fee of ten dollars ($10.00), shall receive and
keep the will and shall give a certificate of the deposit thereof. 33-7-1.
Wrapping and indorsement of will deposited: Every will intended to be deposited shall be enclosed in a sealed wrapper, with an indorsement thereon of the name and place of
residence of the testator and of the date when and the person by whom it
is deposited, and the wrapper may also have indorsed upon it the name of
a person to whom the will is to be delivered after the death of the testator.
A will, when so deposited, shall not be opened until it is delivered to
a person entitled to receive it, or until it is otherwise disposed of as
hereinafter provided. 33-7-2
Person to whom will delivered: During the lifetime
of the testator, the will shall be delivered only to the testator himself
or herself, or in accordance with his or her order, in writing, duly proved
before the probate judge; and after his or her death it shall be delivered
to the person named in the indorsement, if the person demands it. 33-7-3
Disposition of deposited will after death of testator:
If the will is not called for by the person, if any, named in the
indorsement, it shall be publicly opened at the first probate court held
after notice of the testator's death, and shall be retained in the clerk's
office until it is opened. If the jurisdiction of the case belongs to some
other court, it shall be delivered to one of the executors named in the
will, or to the clerk of the probate court having jurisdiction of the will,
upon proper receipt therefor. 33-7-4
Duty of person in possession of will to deliver into court: Every
person, other than a probate clerk, who has custody of a will shall, within
thirty (30) days after notice of the death of the testator, deliver the
will into the probate court which has jurisdiction of the probate thereof,
or to the executors named in the will, who shall themselves deliver it
into court within thirty (30) days after they receive the will; and if
any executor or other person neglects, without reasonable cause, to deliver
a will, after being duly cited for that purpose by the court, he or she
may be adjudged to be in contempt and may be committed therefor to the
adult correctional institutions and shall remain there until he or she
delivers the will to the court; and he or she shall be further liable,
to any party aggrieved, for the damage sustained by reason of the neglect.
Provided further, that a fiduciary nominated in a will
may deliver such will to the probate court with an affidavit containing
the following information, representations, and documentation:
(a) The date of death of the decedent accompanied by
a certified copy of the decedent's death certificate;
(b) A representative that the funeral bill of the decedent
has been paid, accompanied by a receipt therefor;
(c) The names and addresses of the heirs-at-law of
the decedent at the decedent's date of death; and
(d) A representation that the affiant has received
no notice of the issuance of letters testamentary or letters of administration
regarding the estate of the decedent, and that there are no assets of the
decedent subject to probate. Upon receipt of such will and affidavit the
probate clerk, upon being paid a fee of thirty dollars ($30.00), shall
receive and keep the will and accompanying affidavit and shall give a receipt
of the deposit thereof. 33-7-5
Penalty for theft, destruction, or concealment of will:
Any person who shall either during the life of the testator
or after his or her death steal or for any fraudulent purpose destroy or
conceal any will or other testamentary instrument, either before or after
probate, shall be imprisoned in the adult correctional institutions for
a term of not more than five (5) years, and in any complaint, information,
or indictment for the offense it shall not be necessary to allege that
the will, codicil, or other instrument is the property of any person or
that it is of any value. 33-7-7
Proof of purported will or codicil: In the absence of objection
by anyone interested in the estate of a deceased person, the probate court
may admit to probate a purported will or codicil of the deceased person
upon oral testimony or affidavit in the following manner:
(1) The oral testimony of any one of the subscribing
witnesses as to the due execution of any purported will or codicil shall
constitute sufficient evidence thereof.
(2) An affidavit by the subscribing witnesses or any
one or more of them, to any purported will or codicil, executed at any
time after execution of the will or codicil, whether before or after the
death of the testator, before any officer authorized to administer oaths
in or out of this state, stating the facts as the witnesses or witness
would be required to testify to in court to prove the will or codicil,
shall constitute sufficient evidence of the due execution of the purported
will or codicil.
(3) An affidavit substantially in the form that follows
shall be deemed to meet the requirements of subdivision (2) of this section:
STATE OF
COUNTY OF
In . . . . . .
. . . . on this . . . . .
. . day of . . . . . . ., 19
. . . ., before me personally appeared the undersigned,
who, being duly sworn, depose and say that: they witnessed the execution
of the will (codicil) of . . . . . .
.; that the signature to the will (codicil) is in the handwriting of the
testator or was made by some other person for the testator, in the testator's
presence and by the testator's express direction; that the testator so
subscribed the will (codicil) and declared the same to be his last will
(a codicil to his last will) in their presence; that they thereafter subscribed
the same as witnesses in the presence of the testator and in the presence
of each other; that at the time of execution of the will (codicil) the
testator appeared to be of sound mind and eighteen (18) years of age or
over; and that the signatures of the witnesses on the will are genuine.
Subscribed and sworn to before me on the day and date
first above written,
Notary public
33-7-26
