Last Will & Testament Language

by Kristin Shea, studioD
The phrase “of sound mind” conveys testamentary capacity.

The phrase “of sound mind” conveys testamentary capacity.

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The words and phrases you use when writing a will have specific legal meanings. Although the language can sound overly formal at times, certain words and phrases in your last will convey meanings that a court can readily interpret to determine the will’s validity and the testator’s intentions.

Of Sound Mind

In all states, one of the requirements for a valid will is that the testator was competent when signing the will. Competency means that you understand the general nature and extent of your property and that you can distinguish your family and friends from other people. The introduction to a will should include language that expresses testamentary capacity. The phrase “of sound mind” conveys the testator’s competency to the court.

Revoke Wills and Codicils

In the first paragraph of your will, you should clearly express that you are revoking all previous wills and codicils. It may seem strange to claim you are revoking previous wills if you haven’t written a previous will, but the phrase gives notice to the court that no valid previous will exists. If a previous will does exist and you fail to include language that you are revoking the previous will, the court might decide that the previous will represents the testator’s intentions and that the subsequent will is invalid or is an amendment to the previous will.

Residuary Estate

The residuary estate refers to all your remaining assets after your executor has paid expenses and taxes, satisfied debts, and distributed specific assets to beneficiaries according to your wishes. When deciding how to distribute your remaining assets, remember that the value of your assets might increase or decrease from the time you execute your will, so you might be leaving substantially more or less to beneficiaries of your residual estate than you originally intended.

Powers of Executor

An executor is the person appointed by the court to administer your estate. Usually the court appoints the person you name in your will unless it has legal reason to invalidate the person you name. Some states use the term “personal representative” to describe the person administering the estate. Whichever term is used by your state, you should specify this person’s duties and powers to deal with your estate. Providing your executor with specific powers can permit the executor to handle unanticipated circumstances to better preserve your assets for your beneficiaries.

Simultaneous Death Clause

If you are married, your will should include a simultaneous death clause that explains how to handle probate if you and your spouse die together in an accident. By instructing that your will be probated as though your spouse predeceased you, you permit probate to proceed without delays. Your spouse should include a similar clause for the same reason. In addition, some wills include a clause that deems anybody who dies within 30 days after you, for the sake of probate, as having predeceased you. This language directs the court to probate assets through your will instead of the deceased beneficiary’s will.