What Is the Legal Document Called a Will?

by Elizabeth Rayne
The person who makes a will is referred to as the testator.

The person who makes a will is referred to as the testator.

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By properly drafting a will, you can ensure that your property is distributed to your loved ones according to your wishes, and you may appoint a trusted individual to take care of your children should something happen to you. However, a will may only be followed if you follow the formalities for drafting a will. If the will is invalid, state law provides how your assets will be distributed.

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Will Overview

A will is a legal document that provides how an individual's property will be distributed after he dies. The testator, or the person who makes the will, may appoint an executor who will be responsible for distributing the testator's property according to the instructions in the will. At any time before the testator dies, he may edit the will, add provisions, or revoke the document completely. When the testator adds, removes or changes a provision in the will, the change is typically reflected in a "codicil," a document that notes any amendments to the will.

Bequests and Guardianships

In your will, you may include how the executor should distribute your real and tangible personal property. When a will gives property to an individual, this is referred to as a bequest. Often, a testator will bequeath property to one person and also specify an alternate beneficiary in case the original beneficiary dies before the testator. In addition to property division, you may specify how debts, taxes and funeral expenses should be paid. Further, you may name a guardian to take care of your children or pets after you die.

Formal Requirements

In every state, you will find laws that provide the formal requirements for drafting a will. If the requirements are not carefully followed, the will may be invalid. In most states, the testator must be at least 18 years old and have testamentary capacity. Testamentary capacity generally refers to having a "sound mind" and the ability to understand the consequences of drafting a will. Additionally, most states require the testator sign his will before a specified number of witnesses. Generally, the witnesses must also sign the will.

Intestacy

When a person dies without a will, or his will is found to be invalid, his property is distributed according to the intestacy laws of the state. The state laws for intestacy must be strictly followed and may not be adjusted based on the needs of the remaining family members. Generally, intestacy laws provide that the estate is distributed to the spouse and children of the deceased person. For many families, handling an intestate estate is more costly and time-consuming than distributing property under a will.