Estate planning refers to the process of organizing an individual’s estate. An estate includes all of a person’s property (real estate, cash, stocks, personal items, business interests, and more). Preparing an estate plan most commonly includes creating and executing legal documents, like wills and trusts. This will help determine what will happen to the person’s assets and property interests after their death.
Estate planning typically includes transferring property and assets to other people upon the person’s death. In order to alleviate any concerns and honor the individual’s wishes, the goal is to have a plan with clear intent about where the assets go and who receives what property.
As noted, oftentimes, an individual will want to create a will as a part of their estate plan. A will is a written document that communicates how to distribute a person’s assets and property after their death. This will be according to the person’s wishes and demands made before they pass away.
The legal term “testator” is used to describe the individual who creates their last will and testament. For women, the legal term “testatrix” is used. This language will be present throughout the text of the document so it is important to be familiar with it if you are thinking of creating a will as part of your estate plan.
Who are the Other Parties Involved in an Estate Plan?
If a will is part of your estate plan, you will notice several other terms in a will describing the parties besides the testator. This usually always includes the following:
- Executor: The individual who the testator designates to distribute their property and other assets upon their death. For a trust, this person is referred to as a trustee.
- Beneficiaries: These are the individuals who will receive/inherit the property and other assets that are listed in the will. Other terms used for this are devisees and heirs.
- Keep in mind this could be family, friends, charities, businesses, and churches.
- It is important to be thorough in the will about which beneficiaries get what property, how and when they will receive the property, and if there are any restrictions upon the distribution.
- Witness: Another uninterested party will typically have to watch the testator sign the will and then sign it as a witness attesting to the fact that the testator in fact executed the document.
What are Some Important Issues Surrounding Will Testators?
After the testator dies, other parties that believe they have interest in the testator’s property could challenge the will. One common challenge is that the testator was not of sound mind and body when they created and/or signed the will.
Under law, a person needs to have testamentary capacity to create a valid will, which means the testator must be able to understand their actions. The requirements for this are generally as follows:
- The testator is at the age of majority, which is usually 18 years old. However, this can vary, so you will need to check your state’s laws;
- The testator actually owns property and/or assets that can be distributed upon their death. If there is nothing to distribute or someone else owns the property noted in the will, this would be grounds to invalidate the will;
- The testator does not have any mental issues that would prevent them from creating a will. This is a common issue with elderly or sick people;
- The testator must be able to identify the beneficiaries they want to include in the will; and
- No other person can force the testator or place them under duress to make a will.
Keep in mind that these things will generally invalidate a will based on the testator’s inability to create a legally binding will. However, the states may vary on the specific requirements and defenses so it is important to know these things if you are going to challenge a will or if you are the testator and want to avoid future challenges.
Another common issue is what happens when a devisee listed in a will dies before the testator. In that case, if the testator made a provision in the will addressing this situation then that would govern the outcome. If they did not, it could be a trickier situation that the court will need to decide.
For example, a testator could list out who else would receive the devisee’s inheritance if they die first. Another legal term used in this situation is “per stripes” which means that the devisee’s property will pass to their lineal descendants/direct heirs (like children).
Another option is to distribute the property “per capita”, which means that the devisee’s inheritance will instead be split among the remaining devisees (those who are supposed to inherit and are still alive).
Should I Talk to a Lawyer If I Want to Be a Testator?
If you want to create a will as a part of your estate plan, you should contact a local estate planning lawyer to help with the process. A lawyer can make sure you fulfill all the responsibilities as a testator and comply with all relevant laws. A lawyer can also make sure the will should withstand challenges and carry out your distribution intent as the testator.