A will (or testament) is defined as a legal declaration in which an individual (known as the “testator”) has named one or more individuals to manage the affairs of his or her estate. This is for the purpose of transferring property at the time of the testator’s death. The term “Last Will and Testament” came about as a result of the definition of “will” being limited to actual property. The term “testament” was applicable to the distribution of personal property. This separation of terms, however, is rarely used today. A testamentary trust may also be created by a will and becomes effective only upon the death of the testator.
Anyone over the legal age of majority may draft their own will, as long as they adhere to any additional requirements within their jurisdiction. These requirements can vary but will usually include: that the testator clearly identifies themselves and that the document is, indeed, a will. That all previous wills are revoked only insofar as the inconsistencies that they may contain. The will must be signed and dated in the presence of at least 2 witnesses that are not beneficiaries. The testator must have the capacity to bequeath his or her property and is doing so willingly. The testator’s signature needs to be located at the very end of the document – otherwise any text after the signature will be disregarded. All beneficiaries must be clearly identified in the text.
While it isn’t a legal requirement for a will to be drawn up by an attorney, it should be noted that pitfalls can be encountered with home-made wills. In some cases, the testator may not be able to clearly explain their intentions and they are not in a position to make any clarifications after their death. This creates little room for error.
The various types of wills generally include the following:
- Nuncupative (non-culpatory) will – which is made verbally or is dictated.
- Holographic will – a hand-written will created by the testator.
- Will in solemn form – a will that is signed by the testator and the witnesses.
- Self-proved will – the same as a will in solemn form – but with affidavits of the subscribing witnesses (to avoid probate).
- Notarial will – a will which is prepared by a civil-law notary (civil-law jurisdictions).
- Mystic will – a willed which remains sealed until the testator’s death.
- Serviceman’s will – a will used by those in active-duty military service in which certain formalities are relaxed.
- Reciprocal/mirror/mutual/husband and wife wills – these are made by two or more testators and make complimenting provisions – each in favor of the other.
- Unsolemn will – a will in which the executor is not named.
Please note that this article is for informational purposes only and is not intended as legal advice.
Do you have questions regarding a will? You can click here to find out more about this subject. Florida Probate Lawyer Adrian Philip Thomas, P.A., serving Fort Lauderdale, Florida may be able to assist you.