When an individual dies testate, it means that he or she had a valid will in place. If there is no will in place, the individual is considered to have died intestate.
There are special terms used when discussing wills and estates. A few of the most important terms are defined below.
Testator – an individual who has made a will. Certain requirements must be met. These are discussed below.
Will – a document specifying the testator’s wishes regarding the distribution of property and assets after death.
Beneficiaries – the people or organizations that will receive the testator’s property and assets after death.
Executor – a personal representative, designated by the testator, who is responsible for managing property and assets through the probate process. If the testator does not designate an executor in the will, a court will appoint someone for the task. A court-appointed representative is referred to as an “administrator.”
Notice: The required formalities for wills vary from state to state, so you should seek independent legal advice before attempting to create your own will.
Requirements for the Testator – Testamentary Intent and Capacity
To create a valid will, the testator must have a present testamentary intent that the instrument operate as his or her will. This intent is generally shown in the will itself (e.g., “I, Testator, do hereby declare this instrument to be my last will”). However, situations involving coercion, fraud, or undue influence may indicate a lack of testamentary intent and may therefore result in a challenge to the validity of the will.
Also, the testator must have the testamentary capacity to execute the will, which means she must be of legal age (18) and of sound mind.
Requirements for Witnesses – Competency
Attesting witnesses must be competent, which means that they must be at least 18 years old and of sufficient mental capacity to testify in court.
There are two types of wills: holographic (handwritten) and attested (typed and witnessed). The attested will has much stricter formality requirements than the holographic will.
The general requirements for an attested will are as follows:
- The will must be signed by the testator, or by someone else at the testator’s direction and in her presence. Jurisdictions are divided on what it means to be in the testator’s “presence.” Some hold that the signing must be done within the testator’s actual line of sight, while others require only that the testator be generally aware that the signing is occurring, such as if the signing took place nearby and the testator knew it was happening.
- The testator’s signature must be at the very end of the will. In most jurisdictions, any provisions attempting to dispose of property that are included after the testator’s signature are invalid, but strictly procedural provisions such as the naming of personal representatives, etc. may still be upheld.
- The will signing must be witnessed by at least two competent witnesses, who must then sign the will themselves in the testator’s presence. The same jurisdictional differences noted above apply to the “presence” requirement here. Also, an issue may arise where one or more of the witnesses are “interested” parties, meaning they are also designated as beneficiaries in the will. Generally, as long as there are at least two disinterested witnesses, additional interested witnesses don’t matter. If there aren’t at least two disinterested witnesses, some jurisdictions hold that the will is automatically invalid. A majority of courts, however, will still uphold the will but will exclude interested witnesses from taking under the will. Some states also allow an interested witness who is also an heir of the testator to take the lesser of either the gift provided in the will or her intestate share (what she would have gotten if there had been no will).
- Lastly, the testator must “publish” the will, meaning that she must declare to the witnesses that the instrument is her will. This requirement can be satisfied by including a clause to that effect at the end of the will, above the witnesses’ signatures.
Most states allow an attested will to be “self-proved,” meaning that the witnesses can sign an affidavit before a notary public saying that the formalities were met and that they witnessed the execution of the will. Self-proving affidavits can eliminate the need to locate and subpoena witnesses if the validity of the will is challenged later on. The majority of courts even hold that the witnesses’ signatures on the affidavits can count as the signatures needed on the will itself, in case the witnesses didn’t sign the will.
Several states recognize holographic (handwritten) wills. A holographic will can be much more informal than an attested will. The general requirements of a holographic will are:
- The entire will must be in the testator’s handwriting. However, most states recognize an exception to this general rule as long as the material provisions are handwritten (i.e., the typewritten portion can be discarded without frustrating the testator’s intent).
- The testator must sign somewhere in the document. The signature can be anywhere in the document, even in the introductory sentence (e.g., “I, John Smith, do hereby declare…”), and most courts will even allow initials, a first name only, or even a nickname.
- The instrument must evidence the testator’s testamentary intent, as discussed above. This can cause problems when the document purported to be a holographic will resembles a memorandum or simply a letter, but often a simple declaration in the document itself stating that it is the testator’s will is good enough to demonstrate testamentary intent.
There are no witness requirements for a holographic will.
A few of the most common provisions found in wills and a brief explanation of each are discussed below. This list is not all-inclusive, and some of the items may not be necessary, depending on the situation. Some complex wills may require additional clauses, while other simpler wills may not need all of the ones listed here. Also, holographic wills (handwritten) may lack several of these components and still be valid, depending on the jurisdiction, because they don’t require many formalities.
Most attested wills begin with a statement that the testator is of sound mind and legal age, that the document is the last will and testament of the testator, and that it revokes all previous wills. This introductory paragraph is important for several reasons. First, it is evidence of the requisite testamentary intent and capacity (see “Requirements for Testator” above). Second, it specifically revokes any previous wills the testator may have had. This is important because if a will does not explicitly revoke previous wills, the older versions will control with regard to any property that isn’t disposed of in the newer one.
Personal Information and Definitions
This paragraph mainly sets out the testator’s marital status and may also name his or her children or other family members, to make it clear who the will is referring to. It may also provide definitions for some of the more ambiguous terms.
This is where the testator appoints a personal representative – the person who will administer the will. It may also be prudent to designate a backup representative in the event that the primary choice is unwilling or unable to serve. The testator can also (and will probably want to) waive the bond that is normally required by the probate court to serve as personal representative. For more on the personal representative’s duties, see “The Probate Process” below.
Payment of Expenses
This clause typically directs that any administrative costs and probate expenses incurred in administering the will are to be paid out of the testator’s residual (leftover) estate and gives the personal representative authority to sell off other property if the residual assets aren’t sufficient to cover the costs.
Distribution of Property
This is where the will actually says who gets what. The testator will usually want to name a backup beneficiary, in case the primary beneficiary declines or is already deceased. Any leftover property not specifically disposed of goes to the “residuary” beneficiaries, if any are named (e.g., “the remainder of my assets to X and Y”), or passes via intestate succession if there are no residuary beneficiaries.
Creation of Testamentary Trust
A testamentary trust is a type of trust that is created in a will. It is often used to provide for distribution of large amounts to minor children. A testamentary trust can be provided for in the will and becomes effective as an irrevocable trust upon the testator’s death. The terms of the trust may be included in the will itself, or the will may refer to a separate trust document.
Guardianship/Conservatorship for Minor Children or Others
The will may provide for a guardian for minor children or others (e.g., incapacitated adults) that survive the testator or may designate a conservator for certain assets or funds. This person may be the same as the personal representative or someone else entirely.
This is a brief statement that the law of State X governs the will, in order to avoid possible confusion or challenges under the laws of a different state later on.
Testator’s Publication and Signature
For attested wills, there is typically a paragraph explaining that the testator is signing the will in the presence of witnesses and declaring that it is her will (see the “Publication” requirement above). The testator then signs and dates the will below this paragraph.
Attestation Clause and Witnesses’ Signatures
Similar to the testator’s publication clause directly above, this paragraph says that the testator published the will to the witnesses and signed it in their presence. It also typically states that the witnesses believed the testator to be of sound mind and that they signed the will in the presence of the testator and each other.
Power of Attorney
A power of attorney form is generally a separate stand-alone document, but it is often executed at the same time as the will. Executing a power of attorney in favor of someone else gives that person the right to make certain legal decisions for you. The power of attorney can be as broad or narrow as you wish it to be; it can delegate the power to transact business on your behalf or make financial decisions for you, etc.
A common statutory power of attorney form may have a list of possible “powers” to choose from, and the testator may check off the ones he or she approves of. A “durable” power of attorney is a similar instrument but only goes into effect if the testator becomes incapacitated and is unable to handle his or her own affairs.
Living wills and health care directives are other legal instruments that are similar to a durable power of attorney but give specific instructions regarding a person’s health care wishes in the event he or she becomes incapacitated (e.g., whether or not the person wishes to be kept on life support).
The Probate Process
A valid will must go through probate upon the death of the testator. The personal representative of the estate is responsible for handling the probate process. If no personal representative is designated in the will, the probate court can appoint one (the representative is called the “executor” if appointed in the will, or the “administrator” if appointed by the court). The probate process may vary from state to state but generally goes as follows:
1. Upon the testator’s death, the representative should take the will and the death certificate to the proper court, which in most states is the probate court. Some states don’t have probate courts but instead have other similar courts that deal with probate matters. The representative must provide some basic information such as the names of the testator’s family and the estimated value of the estate, and will be required to post a bond if necessary (i.e., unless the bond requirement is either waived in the will or is inapplicable for other reasons). The will and related probate documents become public records. The court will then officially appoint the representative and issue “letters of testamentary” (called “letters of administration” when issued to an administrator), which serve as proof of the representative’s status and allow him or her to take control of the testator’s assets.
2. The representative may need to open a bank account in the name of the estate and transfer assets into it, or change the names on existing accounts and assets to that of the estate. Once the probate property is gathered, the representative usually files an inventory of the property with the probate court.
3. The representative is responsible for paying the estate’s debts and expenses in the proper order as required by state law and may contest the validity of creditors’ claims also. Those issues are resolved by the probate court.
4. The representative must determine whether a federal estate tax return needs to be filed, which depends on the size (i.e., value) of the estate. Currently in 2013 and going forward, estates of less than $5 million (and this amount will be adjusted annually for inflation) are exempt from federal estate taxationlly. If necessary, the representative must file the tax return on behalf of the estate.
5. The court may require periodic accountings from the representative, either on its own or at the request of the beneficiaries.
6. After taking care of all of the estate’s liabilities, and after a required waiting period (if any), the representative can distribute the probate property to the beneficiaries in accordance with the terms of the will. The representative is then required to make a final accounting to the court, explaining who received what. If the beneficiaries don’t object to the accounting, they all sign receipts indicating that they received their distributions, and the court will close the estate and discharge the personal representative.
Any challenges to the administration of the will or to the validity of the will itself, as well as disputed creditors’ claims against the estate, are generally resolved by the probate court.
Written by: Walt McCarter