Basic Vocabulary and Execution
The easiest way to make sure that a person’s property is distributed after his death in keeping with his wishes is for him to prepare a will. A will is a legal document that explains where a person wants or does not want his property to go after his death. A will becomes effective upon death and, until then, it can be revoked or amended. If a person dies without a will, a court will determine where his property goes according to state law.
A person who makes a will is called the “testator.” A “devise” applies to real property, a “legacy” applies to money, and a “bequest” applies to non-money personal property. A “codicil” is an amendment or a supplement to a will. In order to be valid, wills and codicils must be “validly executed;” i.e., they must follow certain rules which vary from state to state.
In general, a testator must be at least 18 years old to make a will and must be mentally capable. A will made by a person under age 18 is never valid, even if he dies after age 18, because he did not have the legal capacity to make the will when he did. A testator must intend that the document is to act as his will and he must sign it. Any mark that the testator intends as his signature is sufficient.
Some states require that the testator’s signature be at the end of the will, such that any writing that comes after the signature is ignored. Some states also require that the testator must sign the will in the presence of witnesses. In such instances, the witnesses must “attest” (verify) the testator’s signature by signing their names within a certain time period (usually within 30 days). However, the exact time and order in which the signatures are made is not significant if they happen during the same formal procedure. Additionally, the testator must tell the witnesses that they are witnessing a will as opposed to some other legal document. This is known as the “publication” requirement.
Many states recognize wills that are written entirely in the testator’s handwriting and are not witnessed. These are known as “holographic” wills. Those states that do not allow holographic wills may make exceptions for wills made by a member of the armed forces during wartime or made by a mariner at sea. However, such wills are not valid more than one year after the armed forces member is discharged or more than three years after being written by a mariner at sea.
Copyright 2011 LexisNexis, a division of Reed Elsevier Inc.