Wills FAQ

What is Will?

A Last Will and Testament (a “Will”) is a legal document that: (a) states an individual’s (the“Testator”) final wishes regarding their property and dependents, and (b) appoints another person (the “Executor”) to carry out those wishes once they have died. Persons who receive benefits from the Testator’s estate arereferred to as a “Beneficiaries.”

What types of Wills are there?

There are many types of traditional Wills:

• Holographic Wills - informal and handwritten.
• Statutory Wills - a template-based document that is pre-drafted, requiring the Testator to fill in blanks.
• Testamentary Trust Wills – more complex than Statutory Wills, allowing the Testator to set up a trust.

Who should use a Will?

Wills are recommended for all adults regardless of profession, current health or size of estate. Individuals dying without a will (intestate, described in more detail below) may leave behind unintended conflict among family and friends, not to mention that their property may be distributed in a way that they would not have wanted.

What is the benefit of using a Will?

The benefit of having a Will is to allow the Testator to still have legal bearing and control on how their property and dependents will be treated after their death. In addition, this control will provide peace of mind to the Testator, knowing that they have provided for their loved ones after they pass away.

What are the requirements to a valid Will?

The Testator must be: (i) an adult or declared as an emancipated adult; and (ii) of sound mind and judgment at the time when the Will is created and signed.

Within the Will itself, the Testator must: (i) plainly identify himself/herself, the executor(trix)and beneficiaries; (ii) describe how their wishes will be carried out; and (iii) attest their Will by signing and dating the document.

What are the requirements in signing and executing a Will?

Although specific requirements differ from one state to another, generally a Will must be signed before one or two disinterested witnesses (non-family members or persons receiving a portion of the estate). In some states the Will may be required to be notarized.

How do I enforce a Will?

Generally after a Will has been executed, the Testator should make copies of the Will and distribute a copy to the executor, keep a copy in a safe, secure, location, as well as inform family or friends of the location of the document. When the Testator dies, the Will is then submitted to a probate attorney or the probate court by the executor or any of the beneficiaries.

Where is a Will enforceable?

Provided that a Will is valid, it is enforceable in any state in the United States.

Can a Will be terminated or revoked?

Because there is no filing requirement to show or declare that a Will has been created, revoking a Will is rather simple: (i) destroy the Will and any copies; or (ii) create a new Will with a provision that the new Will revokes any and all prior Wills. If two Wills are presented to the probate court, the court will enforce the most recent Will and effectively revoke the prior Will.

Can I change my Will?

Yes. You can amend your Will as often as you’d like. Amendment of a Will can be effected in two ways:

• Create a Codicil. A Codicil is an amendment to the original Will. To be valid, it must meet the same execution requirements of the original Will.
• Create an entirely new Will with the changes and include a provision that revokes any previous Wills and Codicils.

What happens if I don’t have a Will?

If you pass away and have not created a Will, you are considered to have died intestate. When a person dies intestate, the probate court will appoint an administratorto handle the deceased’s estate. Typically, the estate will be distributed based on the state’s inheritance laws.

Abatement: A reduction or complete extinguishment of a gift in a will where the estate does not have sufficient assets to make full payment.

Acknowledgment: Formal declaration before a notary public.

Ademption: The withdrawal of a gift in a will by an act of the testator that shows an intent to revoke it. For example; by giving the willed property away as a gift during his or her life.

Administrator/Administratrix: One who is appointed to administer the estate of a deceased person who has died without a will or who has died with a will but has not named an executor. The distinction between the two titles (male and female) has largely been removed and administrator is proper usage for either male or female.

Advancement: A lifetime gift made to a child by a parent, with the intent that the gift be all or a portion of what the child will be entitled to upon the parent’s death.

Affidavit: A person’s signed and notarized statement.

Alternate Beneficiary: A person chosen to receive a gift under a will or trust should the originally chosen beneficiary not be available or surviving.

Ancestor: One from whom a person is descended.

Annuity contract: A form of investment in which the purchaser is guaranteed a certain periodic payment for life or a certain term.

Appraisal: Valuation of a piece of property, generally by a person certified to conduct such a valuation.

Assets: Any property that you own. Your assets may consist of real estate or personal property. Your personal property may consist of cash, securities, or actual tangible property.

Attestation: To sign one’s name as a witness to a will.

Augmented: An augmented estate is your estate left under a will plus the value of property transferred by other means, such as joint tenancies and living trusts. The augmented estate is used to calculate the value of a spousal share of an estate in those states that use this concept.

Bank Trust Account: A type of payable-on-death account under which the main ac- count holder retains full and unilateral control of the account until death. Same as a Totten Trust.

Basic Will: A simple standardized type of will.

Beneficiary: One who is named in a will to receive property; one who receives a benefit or gift, as under the terms of a trust.

Bequest: Traditionally, a gift of personal property in a will. Synonymous with legacy. Now, gift is the appropriate usage for either a gift of real estate or personal property. Bond:Adocument by which a bonding company guarantees to pay an amount of money if the bonded person does not carry out his or her legal duties.

Bonds: A form of investment through which a company is indebted to the holder and, generally, pays interest to the holder.

Business Interest: Ownership of any form of business, such as a sole proprietorship, partnership, corporation, or limited liability company.

Buy-out Provisions: Contractual terms contained in a business ownership agreement (such as a partnership agreement) that specify the terms under which other owners may be required or have the option to purchase (buy-out) another owner’s interest in the business, often upon the death of an owner.

Certificate of Deposit: A form of investment under which a bank issues a certificate indicating that it holds a deposit and will pay a certain rate of interest for a certain term.

Charitable Organization: A group that holds a Federal 501(c)3 “charitable organization” tax exemption status, and is able to receive tax-exempt donations.

Children’s Trust: A form of trust under which gifts to children may be held in trust beyond the child’s attainment of the legal age of majority.

Clause: A separate portion of a paragraph or sentence; an article or proviso in a legal document.

Close Corporation: A corporation operated by a small number of individuals, often family members. Is often exempt from certain state laws and may operate more informally. Also referred to as a “closely-held corporation.”

Codicil: A formally-signed supplement to a will that is used to alter, amend or revoke provisions in the original will.

Coercion: The application to another of either physical or moral force.

Common Law: System of law that originated in England based on general legal principles rather than legislative acts.

Common-Law Property: Property held by spouse in a common-law state. Can be jointly-held or solely-owned property. The name(s) on the title document is/are the determining factor(s). See Appendix for those states where this system of marital property applies.

Community Property: The property acquired by either spouse during marriage, other than by gift or inheritance. Each spouse owns a half-interest in the community property. See Appendix for those states in which this system of marital property applies. Conservator: Temporary court-appointed custodian of property.

Contest: Challenge the validity of a will.

Corporation: A company formed and authorized by law to act as a single person and provided with limited liability for any shareholders, and endowed by law with the capacity of succession.

Curtesy: In ancient common law, a husband’s right to all of his wife’s real estate for life upon her death. Now, generally abolished in most jurisdictions and replaced with a right to a certain statutory share of a spouse’s property.

Death Benefits: Money, generally from either insurance policies or pension plans, that are payable to the beneficiaries of a decedent.

Deceased: No longer living; A dead person.

Decedent: One who has died.

Descend: To come from an ancestor or ancestry.

Descendant: One who is descended from another.

Descent: Inheritance by operation of law rather than by will.

Devise: Traditionally, a gift of real estate under a will. Now, gift is the appropriate us- age for either a gift of real estate or personal property.

Disinherit: prevent deliberately (as by making a will) from inheriting

Disposition: A final settlement.

Domicile: A person’s principal and permanent home.

Dower: In ancient common law, a wife’s right to one-third of her husband’s real estate for her life upon his death. Now, generally abolished in most jurisdictions and replaced with a right to a certain statutory share of a spouse’s property.

Employee Benefits: Money or other benefits that are payable to an employee, such as health-care insurance, travel-expense compensation, etc.

Escheat: Reversion of property to the state, if no family member is found to inherit it.

Estate: All property owned by a person.

Estate Tax: A tax imposed on property that passes to another upon death.

Execution: The formal signing of a will.

Executor/Executrix: The person appointed in a will to carry out the testator’s wishes and to administer the property.

Family Allowance: An amount that is allowed or granted to one family.

Federal Estate Tax: A percentage tax that is imposed upon the estate of a deceased person for the benefit of being able to pass the estate to others upon death. In 2002, the first $1 million dollars of a person’s estate value are fully exempt from this tax, as is all estate property that passes from one spouse to another. The dollar value of the exemption is scheduled to rise to $3.5 million by 2009.

Fiduciary: A person with a duty of care to another. For example, a trustee has a duty of care to any beneficiary of a trust, and thus, is a fiduciary.

Forgery: The illegal production of something counterfeit.

Fraud: A deception deliberately practiced in order to secure unfair or unlawful gain. Gift: A voluntary transfer of property to another without any compensation.

Grantor: The person who creates a trust. Also may be referred to as a settlor.

Guardian: A person with the legal power and duty to care for another person and/or a person’s property.

Guardian “of the Person:” Guardian responsible for the actual care, custody, and upbringing of a minor child.

Guardian “of the Property:” Guardian who administers the property or money left to your child(ren).

Heirlooms: Treasured pieces of property that have been passed down from ancestors.

Heirs: Those persons who inherit from a person by operation of law if there is no will present.

Holographic: A will that is entirely handwritten by the testator and unwitnessed. No longer valid in most states.

Homestead Allowance: A monetary allowance given in some states to spouses and children to insure that they are not abruptly cut off from their support by any terms of a Living Trust. See family allowance.

Incapacitated: Being unable to care for one’s self or handle one’s own financial or other affairs.

Income Property: Real estate that is held for a commercial purpose; the generation of income.

Inheritance: The receipt of property from someone who has died.

Inheritance Tax: A tax on property received that is paid by the person who has actually inherited the property.

Intestate: To die without leaving a valid will.

Intestate Distribution: A state scheme that is used to determine the distribution of the property of any person who dies without leaving a valid will or another determination of how his or her property is to be distributed upon their death.

Invalid: Not legally or factually valid.

IRA: Individual Retirement Accounts under Internal Revenue Service regulations. Irrevocable: Impossible to retract or revoke.

Joint Tenancy: Joint ownership of property under which the surviving owner automatically owns the deceased owner’s share. This is called the right of survivorship. May be abbreviated as JTWROS or joint tenancy with right of survivorship.

Joint Tenancy with Right of Survivorship: See joint tenancy.

JTWROS: Joint tenancy with right of survivorship. See joint tenancy.

Jurisdiction: The right and power to interpret and apply the law. The territorial range of authority or control.

KEOGH: A form of retirement account.

Legacy: A gift of personal property in a will. Now, gift is the appropriate usage for either a gift of real estate or personal property. Synonymous with bequest.

Legal Age of Minority: The legal age above which a person may legally enter into contracts and otherwise act in the legal capacity of an adult.

Letters of Administration: The court order that officially appoints a person to administer the estate of another.

Letters Testamentary: The court order that officially appoints an executor named in a will as the person to administer the estate of the testator.

Liabilities: Something for which a person is liable, such as a debt.

Life Estate: Surviving spouse has the full use and enjoyment of any real estate for his or her entire life. Upon his or her death, property will pass automatically to person who has remaining share of estate. Recipient of a life estate cannot leave such property to anyone else.

Limited Liability Company: A type of business structure where the liability of a firm’s owners are no more than what they have invested in the business.

Living Trust: A form of revocable trust which becomes irrevocable upon the death of the grantor.

Living Will: A document that can be used to state your desire that extraordinary life- support means not be used to artificially prolong your life in the event that you are stricken with a terminal illness or injury.

Loans Payable: Loans for which a person owes money to another.

Majority: The status of having reached full legal age, with attendant rights and responsibilities

Marital Property: Property which is considered owned by both spouses in a marriage, as opposed to property which is considered owned by each spouse separately. Also referred to as “community property” in those states which adhere to community property legal concepts.

Minor Child: A child who is under the legal age of majority (generally 18 or 21 years old).

Mortgage: A written statement of a debt owed for the purchase of real estate, under which the property is used as collateral.

Net Worth: A person’s net value, determined by subtracting liabilities from assets.

Notary Acknowledgment: A formal declaration made to authenticate a witness’s signature to ensure legal validity.

Notary Public: A person legally empowered to witness and certify the validity of documents and to take affidavits and depositions.

Notes Payable: Money owed to another based on a promissory note and that is due to be paid.

Notes Receivable: Money owed from another based on a promissory note and that is due to be paid.

Nuncupative: An oral will, usually made during a person’s last illness and later reduced to writing by another. No longer valid in most states.

Obituary: A written statement regarding a person’s death, usually in a newspaper. Partnership: A contract between two or more competent persons for joining together their money, goods, labor, or skill, or any or all of them for the purpose of carrying on a legal trade, business, or adventure.

Pass Under: Distributed under the terms of a will or clause.

Payable-on-death Account: An account, generally a bank account, for which a beneficiary is chosen who will receive the proceeds of the account upon the death of the primary account holder. See bank trust account or Totten trust.

Pension Plan: Any plan under which an employee will receive any benefits after the end of his or her employment.

Per Capita: Equally; share and share alike. For example: if a gift is made to one’s descendants, per capita, and one has two children and two grandchildren, and one of the children dies, then the gift is divided equally between the surviving child and the two grandchildren. This amounts to one-third to the child and one-third to each grandchild.

Per Stirpes: To share by representation. For example: if a gift is made to two children, per stirpes, and one should die but leave two grandchildren, the deceased child’s share is given to the two grandchildren in equal shares. This amounts then to one-half to the surviving child and one-fourth to each of the grandchildren.

Personal Property: Movable property, as opposed to real estate property.

Personal Representative: A person who is appointed to administer a deceased’s estate. Modern usage that replaces Executor and/or Administrator.

Posthumous Child: A child born after the father’s death.

Pour-over Will: A will under which a trust is the main beneficiary.

Predeceased: Died before.

Pretermitted Child: A child who is left nothing in a parent’s will and there is no intent shown to disinherit.

Probate: The court proceeding to determine the validity of a will and, in general, the administration of the property that passes under the will.

Promissory Note: A written promise to pay or repay a specified sum of money at a stated time or on demand.

Proprietorship: See Sole Proprietorship.

Proved: To have determined whether or not the document presented is actually the deceased’s will.

Provision: A stipulation or qualification, especially a clause in a document or agreement.

Publication: For a will, the statement by the testator that the document that is being signed is his or her will.

Real Estate/Real Property: Land and that which is attached permanently to it, as opposed to personal property.

Relative: A person who is related by blood or marriage to another.

Residuary: The remainder of an estate after all debts, taxes, and gifts have been distributed.

Residuary Clause: A clause in a will or trust that designates a beneficiary of the residuary of an estate.

Residue: The remainder of a testator’s estate after all claims, debts, and bequests are satisfied.

Revocable Trust: Another name for Living Trust. Upon death, a Living Trust becomes irrevocable and can no longer be changed or altered in any way. In general, however, any type of trust that can be revoked by the grantor.

Revoke: To void or annul by withdrawing, or reversing. To entirely revoke a will, it must be physically destroyed or otherwise irrevocably damaged.

Right of Survivorship: The right of a joint owner of property to automatically obtain ownership over another deceased owner’s share of the property. Generally true in a joint tenancy or a tenancy-by-the-entireties.

Self-Proving Affidavit: A document that may be completed by witnesses attesting to the signing of a will by which they affirm that they did indeed witness the signing. This affidavit may then be used later in a probate proceeding to prove the signing without the necessity of calling the witnesses to testify in person at the probate court.

Separate Property: The property of a spouse in a community property or common-law state that is considered the solely-owned property of that spouse, generally property that is solely owned prior to the marriage and any property that is obtained by gift or inheritance during the marriage.

Settlor: See Grantor.

Shared Property: The property of a spouse in a community property or common-law state that is considered property of both spouses jointly. In community property states, this would be all property that is not separate property. In common-law property states, this would be all property that is not separate property and which is actually held in some form of joint ownership, such as tenants-in-common or as a joint tenancy.

Sibling: A brother or sister.

Signature: One’s name as written by oneself. The act of signing one’s name.

Signing: To affix one’s signature to.

Sole Proprietorship: A business that is owned by one owner and is not a corporation or limited liability company.

Sound Mind: A legal term that refers to the testator’s ability to understand what gifts you are making and who your chosen beneficiaries are.

Spouse: A marriage partner; a husband or wife.

Spouse’s Share: See statutory share.

Spouse’s Right of Election: Surviving spouse has a right to a certain share of the deceased spouse’s estate. This right is regardless of any provisions in the will of the deceased spouse that may give the surviving spouse less than this “statutory” or “com- munity” property share. Occurs in all states.

Statutory Share: In common-law states, that portion of a person’s property that a spouse is entitled to by law, regardless of any provisions in a will. In community property states, a surviving spouse receives half of all of the community property, regardless of any provisions in a will.

Successor Trustee: The person who is chosen to manage and distribute trust assets upon either the incapacitation or death of the original trustee of the trust.

Supplemental Will: Will used to supplement a living trust. Not a pour-over will.

Surviving: To outlive; to outlast; as, to survive a person or an event.

Survivorship Clause: A clause in a trust or will which provides that a beneficiary must outlive the decedent by a certain period of time in order to be considered a rightful beneficiary.

Tenancy-by-the-entirety: A form of joint tenancy that is only allowed for husbands and wives in certain states.

Tenancy-in-common: A form of joint ownership under which each owner owns a certain specific share of the property (perhaps one-half or another fraction). Upon the death of a co-owner, the deceased co-owner’s share is passed to the heirs or beneficiaries of that co-owner, not to the other surviving co-owner(s). Compare to joint tenancy.

Testamentary: The expression of intent to dispose of property by will.

Testator/Testratrix: A male or female who makes a will.

Totten Trust: A type of payable-on-death account at a financial institution that allows a person to name a beneficiary. Similar to a joint account, but the joint co-owner has no rights until the death of the creator of the account. Also known as a bank trust ac- count.

Transfer Documents: Any documents that may be necessary to formalize the change in ownership of property, such as a deed in the case of real estate, or a title in the case of a motor vehicle.

Trust: In general, an arrangement created by one party, the grantor, under which property is held by another party, the trustee, for the benefit of yet another party, the beneficiary. Under a Living Trust, one person may initially be all three of these parties.

Trust Estate: The assets that have been transferred into a trust by a grantor.

Trustee: A person appointed to administer a trust. In a Living Trust, the trustee and the grantor may be the same person.

Vacant Land: Real estate on which there are no buildings present.

Vacation House: Real estate that is owned for the purpose of being used for the owner’s vacations.

Validity: The quality of having legal force or effectiveness.

Voiding: To make void or of no validity; invalidate.

Will: A formally-signed and witnessed document by which a person makes a disposition of his or her property to take effect upon his or her death.

Witness: A person who is present and sees another person sign a document.

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