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 below:
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; and
- 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).
For a will to be recognized as valid by a court, certain formalities must be observed. Formalities include (among other items) the presence of witnesses, and the signing of the will by the testator.
The closely related term “codicil” is 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.
The legal name given to a person who has made a valid will to take upon death, is “testator.” 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; and
- 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” sometimes refers to an individual who has died leaving behind a will. Such a 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. Rules of intestacy govern how the property of someone who died intestate is to be awarded.
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 beneficiary is “distributee.” Another synonym for 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.” “Grantor” is a legal term for someone who transfers property to another through a legal instrument (i.e., a deed, or an easement).
The term “estate” refers to all of the assets and all of the debts a person has accumulated at death. Debts can include (among other items) unpaid taxes, liens, and credit card debt. Assets may include real property (houses), tangible personal property (cars, paintings), and intangible personal property, such as life insurance, stocks, and pensions.
An individual may attempt to dispose of their entire estate through a will. Some individuals may direct that one or more assets be disposed of by a separate legal document known as a trust.
Probate is a formal legal process that takes place through what is known as a probate court. The purpose of the probate process is to establish the validity of a will, and to distribute property in accordance with the will’s terms. Through the probate process, claims against the estate (i.e., claims of creditors) are processed, according to the priority each claim has under the law.
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 be either appointed in the will, or appointed through the probate process, Executor duties include distribution of assets in accordance with 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 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.
If you are thinking of preparing a will you should consult an estate lawyer near you. An experienced estate lawyer can explain key will terms and concepts. The estate lawyer can also draft your will, in accordance with the wishes that you express.