Mutual Wills Package for Married Couple with Minor Children
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 self-proved by appropriate form. The form you located contains 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.
