Will and testament

A will and testament is a legal document that expresses a person's (testator) wishes as to how their property (estate) is to be distributed after their death and as to which person (executor) is to manage the property until its final distribution. For the distribution (devolution) of property not determined by a will, see inheritance and intestacy.

"Last Will" redirects here. For the film, see Last Will (film).

Though it has been thought a "will" historically applied only to real property, while "testament" applied only to personal property (thus giving rise to the popular title of the document as "last will and testament"), records show the terms have been used interchangeably.^[1] Thus, the word "will" validly applies to both personal and real property. A will may also create a testamentary trust that is effective only after the death of the testator.

– oral or dictated; often limited to sailors or military personnel.

nuncupative (non-culpatory)

– written in the hand of the testator; in many jurisdictions, the signature and the material terms of the holographic will must be in the handwriting of the testator.

holographic will

self-proved – in solemn form with affidavits of subscribing witnesses to avoid probate.

notarial – will in public form and prepared by a civil-law notary (civil-law jurisdictions and Louisiana, United States).

mystic – sealed until death.

serviceman's will – will of person in active-duty military service and usually lacking certain formalities, particularly under English law.

reciprocal/mirror/mutual/husband and wife wills – wills made by two or more parties (typically spouses) that make similar or identical provisions in favor of each other.

– similar to reciprocal wills but one instrument; has a binding effect on the surviving testator(s). First documented in English law in 1769.^[7]

joint will

unsolemn will – will in which the executor is unnamed.

will in solemn form – signed by testator and witnesses.

Types of wills generally include:

Some jurisdictions recognize a holographic will, made out entirely in the testator's own hand, or in some modern formulations, with material provisions in the testator's hand. The distinctive feature of a holographic will is less that it is handwritten by the testator, and often that it need not be witnessed. In Louisiana this type of testament is called an olographic testament.^[8] It must be entirely written, dated, and signed in the handwriting of the testator. Although the date may appear anywhere in the testament, the testator must sign the testament at the end of the testament. Any additions or corrections must also be entirely hand written to have effect.

In England, the formalities of wills are relaxed for soldiers who express their wishes on active service; any such will is known as a serviceman's will. A minority of jurisdictions even recognize the validity of nuncupative wills (oral wills), particularly for military personnel or merchant sailors. However, there are often constraints on the disposition of property if such an oral will is used.

– person appointed or who petitions to administer an estate in an intestate succession. The antiquated English term of administratrix was used to refer to a female administrator but is generally no longer in standard legal usage.

Administrator

Apertura tabularum – in ancient law books, signifies the breaking open of a last will and testament.

– anyone receiving a gift or benefiting from a trust

Beneficiary

– testamentary gift of personal property, traditionally other than money.

Bequest

– (1) amendment to a will; (2) a will that modifies or partially revokes an existing or earlier will.

Codicil

– the deceased (U.S. term)

Decedent

Demonstrative Legacy – a gift of a specific sum of money with a direction that is to be paid out of a particular fund.

– succession to real property.

Descent

– testamentary gift of real property.

Devise

Devisee – beneficiary of real property under a will.

Distribution – succession to personal property.

/executrix or personal representative [PR] – person named to administer the estate, generally subject to the supervision of the probate court, in accordance with the testator's wishes in the will. In most cases, the testator will nominate an executor/PR in the will unless that person is unable or unwilling to serve. In some cases a literary executor may be appointed to manage a literary estate.

Executor

clause is the first paragraph or sentence in a will and testament, in which the testator identifies himself or herself, states a legal domicile, and revokes any prior wills.

Exordium

Inheritor – a beneficiary in a succession, testate or intestate.

– person who has not created a will, or who does not have a valid will at the time of death.

Intestate

– testamentary gift of personal property, traditionally of money. Note: historically, a legacy has referred to either a gift of real property or personal property.

Legacy

– beneficiary of personal property under a will, i.e., a person receiving a legacy.

Legatee

– legal process of settling the estate of a deceased person.

Probate

- the portion of an estate remaining after the payment of expenses and the distribution of specific bequests; this passes to the residuary legatees.

Residuary estate

(or specific bequest) – a testamentary gift of a precisely identifiable object.

Specific legacy

– person who dies having created a will before death.

Testate

– person who executes or signs a will; that is, the person whose will it is. The antiquated English term of Testatrix was used to refer to a female.^[9]

Testator

– a person who has the duty under a will trust to ensure that the rights of the beneficiaries are upheld.

Trustee

The testator must clearly identify themselves as the maker of the will, and that a will is being made; this is commonly called "publication" of the will, and is typically satisfied by the words "last will and testament" on the face of the document.

The testator should declare that he or she revokes all previous wills and . Otherwise, a subsequent will revokes earlier wills and codicils only to the extent to which they are inconsistent. However, if a subsequent will is completely inconsistent with an earlier one, the earlier will is considered completely revoked by implication.

codicils

The testator may demonstrate that he or she has the capacity to dispose of their property ("sound mind"), and does so freely and willingly.

The testator must sign and date the will, usually in the presence of at least two disinterested witnesses (persons who are not beneficiaries). There may be extra witnesses, these are called "supernumerary" witnesses, if there is a question as to an interested-party conflict. Some jurisdictions, notably , have long abolished any requirement for witnesses. In the United States, Louisiana requires both attestation by two witnesses as well as notarization by a notary public. Holographic wills generally require no witnesses to be valid, but depending on the jurisdiction may need to be proved later as to the authenticity of the testator's signature.

Pennsylvania

If witnesses are designated to receive property under the will they are witnesses to, this has the effect, in many jurisdictions, of either (i) disallowing them to receive under the will, or (ii) invalidating their status as a witness. In a growing number of states in the United States, however, an interested party is only an improper witness as to the clauses that benefit him or her (for instance, in ).

Illinois

The testator's signature must be placed at the end of the will. If this is not observed, any text following the signature will be ignored, or the entire will may be invalidated if what comes after the signature is so material that ignoring it would defeat the testator's intentions.

One or more beneficiaries (devisees, legatees) must generally be clearly stated in the text, but some jurisdictions allow a valid will that merely revokes a previous will, revokes a disposition in a previous will, or names an executor.

Ademption

including password vaults

Death and the Internet

Ethical will

Trust law

Henson trust

Will Aid

Will contest

Power of attorney

Administration of Wills, Trusts, and Estates by Gordon W. Brown, Delmar Cengage Learning ( 978-0-7668-5281-5)