Wills are legal documents that provide instructions for how an individual’s assets are to be distributed after the person dies. Just as the law governing wills can be complex, so can the terminology used in wills.
Common legal terms associated with wills are explained here. They are will, codicil, testator, holographic, executor, intestate, beneficiary, estate, probate, fiduciary, and synonyms for these words.
What is a Will?
A will is a legal instrument that takes effect upon the death of the person who created it. The will is signed by a testator (the person who created the will) and does any one or more of the following:
- Makes a disposition (also referred to as a distribution) of property
- Directs how property may not be disposed of
- Appoints a fiduciary in the form of an executor, who will oversee the distribution of the person’s assets and completion of their non-monetary wishes
- Disposes of the body of the testator (that is, directs how the remains of the individual who is now deceased are to be disposed of)
- The property that may be disposed of in a will could include both real or personal property
Certain formalities must be observed for a will to be recognized as valid by a court. The requirements vary in different states, but in general, the requirements that must be met by the individual seeking to create a valid will include the following:
- The testator must have “testamentary capacity.” Testamentary capacity is typically met if the testator is above the age of 18, in the military, is legally married, and knows:
- That they are creating a will;
- The effect of the will is to distribute their property upon their death;
- They understand the property in which they are distributing; and
- They understand who is receiving the property.
- The testator must be of sound mind
- The document must expressly state that it is the individual’s will
- The will must be signed and dated in the presence of witnesses. States vary on how many witnesses there must be, but two is commonplace
- The witnesses must sign the will at the same time that the testator signs it
- The majority of states require that the witnesses will not inherit anything from the will
- Having at least one substantive provision. This could include:
- Appointing a guardian for any minor children,
- Listing who is to inherit specific items, or
- Stating what happens to any remaining property not specifically mentioned in the will
- The will must appoint an executor
There is a document that may be attached to the will. This is a “codicil,” defined as a written supplement to a will. A codicil is created to add to, subtract from, revoke, or modify the terms of a will. A common use of a codicil is to make specific bequests to individual beneficiaries.
A second type of will an individual may create is a holographic will. This is a handwritten will made by the testator but outside the presence of any witnesses. Not every state recognizes a holographic will. For this reason, an individual must verify their local laws before relying on a holographic will to distribute their property. In most states that recognize these types of wills, it is required that two or more individuals verify, or testify in court, that the will is, in fact, in the handwriting of the testator.
A third type of will that an individual may create is an oral will. An oral will is created when a testator orally communicates the terms of their will to another individual. In most states, this type of will is not recognized as valid. There are, however, some exceptions. For example, some state courts will deem valid a will that a member makes of the military while they are deployed.
What is a Testator?
“Testator” is the legal name given to a person who has made a valid will. Common synonyms for this word include:
- Devisor: A devisor leaves behind a devise (sometimes referred to as a bequest), which is a specific piece of property
- Decedent: A decedent is a deceased individual
- Legator: A legator is an individual who leaves property, sometimes referred to as a legacy, to a specific person. The person who receives the property is sometimes referred to as a legatee
The similar word “testate” refers to a situation where an individual has left a will behind. The person is said to have died “testate.” In contrast, an individual who has died and not left behind a will is said to have died intestate. State rules of intestacy govern how the property of someone who died intestate will be awarded.
What is a Beneficiary?
A beneficiary is a person, organization, or other entity named in the will who has been designated in the will to receive a legal benefit. This benefit is typically a form of real property or personal property.
A designation (award) of property to a beneficiary is known as a “distribution.” Therefore, a common synonym for a beneficiary is “distributee.” Another synonym for a beneficiary is “devisee,” since the person receiving the property is receiving a devise. Sometimes, a beneficiary is referred to as a “grantee”; in such instances, the testator is referred to as the “grantor.”
What is an Estate?
The term “estate” refers to all of the assets and all of the debts a person has accumulated at the time of death. Assets may include real property (houses), tangible personal property (cars, paintings), and intangible personal property, such as life insurance, stocks, and pensions. Debts can include (among other items) unpaid taxes, liens, and credit card debt.
What is Probate?
“Probate” refers to the legal process when a person dies and their estate is distributed under court supervision. Probate court processes may be used to correctly distribute the estate’s assets to any beneficiaries named in the will. It is also used to establish a plan for paying off any outstanding taxes or debts owed by the decedent’s estate.
The probate court may also evaluate claims and lawsuits involving will disputes, as well as will contests (challenges to the validity of the will). Finally, the probate court can help distribute the decedent’s property if they died without a will.
What is an Executor?
An executor is an individual who is responsible for the estate distribution and overall administration of the estate after the person’s death. The executor may either be appointed in the will or through the probate process. Executor duties include the distribution of assets per the terms of the will. Executor duties also include payment of claims against the estate and payment of debts.
The executor has a special legal duty with respect to the estate. The law refers to this duty as a “fiduciary” duty. A fiduciary is an individual whom the law requires to act for the benefit of another in a trustworthy manner, in good faith, and with honesty. The fiduciary duty owed by the executor is owed both to the estate as well as to the beneficiaries.
Do I Need a Lawyer to Understand Common Will Terms?
Drafting a will according to your intentions is often complicated, as estate planning law is always changing, and the law varies depending on the state you reside in.
Thus, if you are in the process of making plans for the distribution of your property upon your death, it may be in your best interests to consult with a well-qualified and knowledgeable will attorney. An experienced estate lawyer can thoroughly explain key will terms and concepts. An experienced estate planning attorney in your area will be able to consult you as to how your local laws affect your intentions and may draft a will in accordance with those laws.