Will and testament

History

Freedom of disposition

Types of wills

• nuncupative – oral or dictated; often limited to sailors or military personnel.
• holographic will – 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.
• 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.
• 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 that make similar or identical provisions in favor of each other.
• joint will – similar to reciprocal wills but one instrument; has a binding effect on the surviving testator. First documented in English law in 1769.
• unsolemn will – will in which the executor is unnamed.
• will in solemn form – signed by testator and witnesses.

Terminology

• Administrator – 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.
• Apertura tabularum – in ancient law books, signifies the breaking open of a last will and testament.
• Beneficiary – anyone receiving a gift or benefiting from a trust
• Bequest – testamentary gift of personal property, traditionally other than money.
• Codicil – amendment to a will; a will that modifies or partially revokes an existing or earlier will.
• Decedent – the deceased
• Demonstrative Legacy – a gift of a specific sum of money with a direction that is to be paid out of a particular fund.
• Descent – succession to real property.
• Devise – testamentary gift of real property.
• Devisee – beneficiary of real property under a will.
• Distribution – succession to personal property.
• Executor/'executrix or personal representative – 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.
• Exordium 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.
• Inheritor – a beneficiary in a succession, testate or intestate.
• Intestate – person who has not created a will, or who does not have a valid will at the time of death.
• Legacy – testamentary gift of personal property, traditionally of money. Note: historically, a legacy has referred to either a gift of real property or personal property.
• Legatee – beneficiary of personal property under a will, i.e., a person receiving a legacy.
• Probate – legal process of settling the estate of a deceased person.
• Residuary estate - the portion of an estate remaining after the payment of expenses and the distribution of specific bequests; this passes to the residuary legatees.
• Specific legacy – a testamentary gift of a precisely identifiable object.
• Testate – person who dies having created a will before death.
• Testator – 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.
• Trustee' – a person who has the duty under a will trust to ensure that the rights of the beneficiaries are upheld.

  Requirements for creation

Content of the will

• 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 they revoke all previous wills and codicils. 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.
• The testator may demonstrate that they have the capacity to dispose of their property, and does so freely and willingly.
• The testator must sign and date the will, usually in the presence of at least two disinterested witnesses. There may be extra witnesses, these are called "supernumerary" witnesses, if there is a question as to an interested-party conflict. Some jurisdictions, notably Pennsylvania, 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.
• If witnesses are designated to receive property under the will they are witnesses to, this has the effect, in many jurisdictions, of either disallowing them to receive under the will, or 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 them.
• 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 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.