Last Will and Testament Language

By Christine Funk, J.D.

Last Will and Testament Language

By Christine Funk, J.D.

Certain words have certain meanings with regard to the law. This is why the language of your last will and testament is of critical importance. Your final wishes are interpreted by a probate court as the legal community understands the words you used, regardless of your intent. So it's a good idea to make sure you use the proper legal terms.

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Sound Mind, Wills, and Codicils

For a will to be valid, it must be written and executed by a person "being of sound mind." In other words, the person must know what is going on when they sign the document. If they no longer know their name, recognize their loved ones, or understand the significance of signing the document, they are not considered of sound mind and the testament is not considered valid.

A codicil is an amendment to a final testament. When the document declares the author "hereby revokes all previous wills and codicils," it assures the reader (the judge) that there are no other valid testaments or codicils in place at the time. Failure to include this language may lead a court to believe a previous document is still in place, which makes the subsequent document an amendment to the first or not valid at all. Even if someone has never written a legal document before, this is considered standard language. It is helpful because it eliminates any doubt about potential unidentified or unlocated previous wills.

Executors, Personal Representatives, and the Residuary Estate

An executor, sometimes referred to as a personal representative, is the person the court appoints to administer the estate. Typically, the will identifies the author's preferred executor. However, the court does not have to appoint the named person. Sometimes that person does not want to serve in the role of executor, or the court may find they are not a suitable choice. Finally, in some instances, the named executor has died or is otherwise unavailable.

The residuary estate is the portion of the estate left over after the executor has paid all debts, taxes, and other expenses. Once the executor has taken care of these obligations, the residuary estate is what's left for distribution to the designated beneficiaries.

Tangible and Intangible Personal Property

Tangible personal property refers to physical property with the exception of real estate. Tangible property may include art, collectibles, antiques, cars, furniture, jewelry, and other items. While generally not specifically identified, household items, such as clothing, pots and pans, rugs, and the like, are also tangible personal property.

Intangible personal property refers to nonphysical assets. This can include retirement accounts, bank accounts, stocks, and bonds. It also includes cryptocurrency, social media accounts, and files stored on a computer.

Simultaneous Death Clause

A simultaneous death clause addresses situations where the person chosen to inherit dies shortly after the person who wrote the will. In a situation where a married couple, who have named each other as primary beneficiaries, are in a car accident with one dying at the scene and one dying a day later in the hospital, a simultaneous death clause may be useful.

The clause usually gives a window of time, whether 24 hours or 30 days, and states that if a beneficiary dies during that period the testament should go through probate as if the beneficiary predeceased the will's author. This allows the assets to be probated through the original document rather than passing to a beneficiary who has died to then be distributed according to the original one.

If you want to update or replace a previous will, it is a good idea to consult with someone during each step of the way to make certain all legal issues are properly addressed. You may also want to consult a licensed attorney, who can ensure the final testament you intend is the one you actually draft.

This portion of the site is for informational purposes only. The content is not legal advice. The statements and opinions are the expression of author, not LegalZoom, and have not been evaluated by LegalZoom for accuracy, completeness, or changes in the law.