Glossary: Last Will and Testament

Last will and testament is the official name of a standard will. This is a carefully written document which leaves the estate of the individual who signed the will to named entities or individuals (beneficiaries, legatees, divisees) including percentages or percentages of the estate, specific bequeaths, creation of trusts for management and future dispersal of all or a portion of the estate (a testamentary trust).

A will generally names an executor (and potentially successor executors) to manage the estate, states the authority and responsibilities of the administrator in the management and distribution of the estate, sometimes presents funeral and/or burial directions, nominates guardians of minor kids and spells out other terms. To be legitimate the will must be signed by the person who made it (testator), be dated (but an inaccurate date will not invalidate the will) and witnessed by two individuals (other than in Vermont which requires three). In some states the witnesses should be disinterested, or in some states, a present to a witness is void, however the will is legitimate.

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A will entirely handwritten by the testator, signed and dated (a “holographic will”) but without witnesses, is valid in many, however not all, states. If the will (also called a Last Will and Testament) is still in force at the time of the death of the testator (will author), and there is a significant estate and/or real estate, then the will should be probated (authorized by the court, managed and distributed by the administrator under court guidance). If there is no administrator named or the administrator is unable or dead or unwilling to serve, an administrator (“with will annexed”) will be appointed by the court.

A written amendment or addition to a will is called a “codicil” and should be signed, dated and witnessed just as is a will, and should reference the original will it changes. If there is no estate, consisting of the scenario in which the possessions have all been placed in a trust, then the will need not be probated.

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