It is easy to become overwhelmed when reading a deceased loved one’s will. Not only is it emotional, but your loved one’s will probably contains a lot of legal words and phrases that you don’t normally use or see every day, and some that you can’t even pronounce!
Jump ahead to these sections:
- Who Can Read Someone’s Will After They Die?
- List of Basic Will Terminology to Understand Before You Read
- Steps for Reading and Understanding a Last Will and Testament
- Frequently Asked Questions: Reading a Will
That said, a will can be simple to read when you know what it is supposed to contain and understand its terminology. Having a better understanding of your loved one’s will may help you appreciate and respect your loved one’s wishes that they expressed in it.
Who Can Read Someone’s Will After They Die?
When someone dies, their will should be given to the attorney for the estate (if they do not already possess it). Many television programs and Hollywood movies depict the attorney then reading the will aloud to a room full of the decedent’s relatives who are expecting to benefit from the will.
Although this makes for dramatic television, it is not really how wills are presented to family members in today’s legal world. Instead, the attorney will provide copies of the will to anyone who has an interest in the testator’s estate. This normally includes:
- The executor or personal representative of the estate. This is the person who is responsible for administering the decedent’s estate, including filing for probate, notifying creditors, paying taxes, and distributing property.
- Named beneficiaries. The named beneficiaries are those persons whom the testator included in the will to receive property. This does not have to be a family member; it can be anyone. If a minor is named as a beneficiary, the attorney will provide a copy of the will to the minor’s guardian.
- The decedent’s heirs at law. The decedent’s heirs are the deceased’s closest living relatives. Even if they are not named in the will as a beneficiary, they still have an interest in the decedent’s estate because they could inherit the decedent’s estate if the will is determined to be invalid for some reason. The attorney may also notify the heirs so that they have an opportunity to contest the will. The attorney also might provide a copy of the will to anyone named as a beneficiary in any previous wills.
- Others relevant to the administration of the estate. The attorney also may provide a copy of the will to those persons who could affect or be affected by the administration of the estate. This may include the trustees of any trusts the decedent may have executed, any accountants, estate planners, or other attorneys who may have played a role in the drafting of the will, and the IRS, if the estate is subject to any tax burdens.
Of course, you don’t have to receive a copy of the will from the estate’s attorney to be able to read a will. Once someone dies and their will is submitted to probate, it becomes a public document and can be viewed by anyone who cares to see it.
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List of Basic Will Terminology to Understand Before You Read
Because a will is a legal document, usually drafted by lawyers, it tends to include a lot of legal jargon. Yes, some of the legal jargon may not be necessary. But many of the unfamiliar terms in a will have specific meanings and hold particular relevance to lawyers and courts. So many of the legal terms are necessary. If you understand what these legal terms mean, you can better understand the particulars behind the administration of an estate.
- Probate: This is the court process through which the decedent’s estate is administered. The court oversees the process and issues rulings to settle disputes over the validity of the will and authorize the distribution of property.
- Testator/Decedent: The term “testator” identifies the person who executes a will during their life. When the testator dies, they may be referred to as the “decedent.”
- Executor: This is the person named in the will to be responsible for administering the estate.
- Heir: Heirs are the living relatives of the decedent. Heirs may include a spouse and anyone related to the decedent by blood or adoption.
- Descendants: Descendants are anyone who is born after the decedent into the decedent’s direct bloodline of descent (children, grandchildren, great-grandchildren, etc.).
- Issue: Issue describes the children of the decedent. Issue are also descendants, but not all descendants are issue. In some states, however, issue may be defined to include all descendants.
- Ancestors: Ancestors include anyone born before the decedent and is directly related to the decedent by blood, from which the decedent descended.
- Collateral heirs: These are persons who are related to the decedent by blood but from whom the decedent did not directly descend and who did not directly descend from the decedent (siblings, cousins, first cousins, etc.).
- Beneficiary: This is anyone named in the will to receive property from the estate.
- Life estate: A life estate identifies the ownership of property for a person’s lifetime.
- Testamentary trust: A trust is a separate document from the will in which the decedent may have distributed property that is not included in the testator’s probate estate. If the trust is testamentary, it means the trust becomes effective upon the testator’s death.
- Inter-vivos trust: This is a trust that is executed and becomes effective during life.
- Codicil: A codicil is a legal document that is used to supplement a will without having to redraft the entire existing will. A codicil can simply incorporate an existing will by reference. However, a codicil must be fully executed, just like a normal will.
- Residuary clause: A residuary clause is the provision in the will in which the testator names a beneficiary to receive all the property in the estate that was not specifically gifted to a beneficiary in the will. The person named here is called the “residuary beneficiary.”
- “In terrorem” or “no contest” clause: An in terrorem or no contest clause is a provision in a will in which the testator provides that if anyone contests the validity of the will, they may not receive any benefit that they were to receive originally.
Steps for Reading and Understanding a Last Will and Testament
Knowing what to expect in a will can help you to more easily understand what is in it (and what is not) and how the estate is to be administered.
Step 1: Understanding declarations
At the beginning of a will, the testator typically makes specific declarations as a foundation to the will. Here, the testator may:
- Declare that the document is intended to be their last will and testament and that they are competent to execute their will.
- Identify and possibly revoke any other previous wills that the testator may have made.
- Identify their closest family relatives (spouse, children, parents, grandchildren) and indicate that they are intended to be included in (or excluded from) the will.
- Provide for the payment of taxes, bonds, debts, and funeral expenses to come from the estate prior to the distribution of property.
- Name the executor of the estate.
- The testator also might state their specific intentions for funeral arrangements, burial, and other personal preferences.
Step 2: Identifying specific devises
In the next part of the will, the testator typically sets out what property they own and to whom they want to “devise” specific pieces of property. In this part of the will, the testator might impose specific conditions on a beneficiary receiving property or direct the executor or personal representative on how they want their estate to be administered.
Upon the completion of all specific devises, the testator may include a residuary clause to dispose of any other property remaining in the estate.
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Step 3: Identifying a guardian of the children
If the testator has children under the age of 18, and there is no surviving parent, they may identify the person (or persons) whom they wish to serve as guardian and raise the children after the testator’s death.
Step 4: Confirming the execution and date of the will
At the end of the will, you should expect that your loved one signed the will in their own handwriting and that there were two witnesses who also signed the will. You might simply make note of your loved one’s signature and handwriting to confirm that they did, in fact, sign the will.
Be sure to identify the date on which the will was executed in case there are other wills in existence. You will want to avoid any confusion about which will is the testator’s most recently executed document.
Frequently Asked Questions: Reading a Will
Whether you are identified as an executor of a loved one’s estate, named as a beneficiary in the will, or an heir at law who may be affected by the validity or invalidity of the will, you may have the same questions that most people have about wills. Some of your questions may be answered below.
How do you know if you’re a beneficiary in a will?
Once the will is filed for probate, the attorney or the executor for the estate will notify you and should provide you with a copy of the will.
How long does it typically take to read a will?
This can depend on how simple or complicated the will is, which is normally related to the complexity of the testator’s estate. If the decedent owned real estate in different states, possessed significant or complicated personal property, and/or had numerous children from multiple marriages, reading the will may take some time.
However, a simple will from an estate with no issues or complexities could take just minutes to read.
How much time does it take to notify beneficiaries after a death?
Although you may hear horror stories about how long the probate process takes, this is often the result of complications and issues that arise after family and friends learn what is in the will and possibly contest the validity of the will. Before any of these complications arise, the attorney or executor of the estate notifies the beneficiaries in the will.
The timing depends on how quickly after the decedent’s death someone locates the will and how soon thereafter the executor files the will for probate. This could be a matter of days, weeks, or months. Each state places a limit, however, on how long the executor has to initiate the probate process, which could be several years after the decedent’s death.
The executor is also responsible for notifying potential creditors of the estate, and each state has rules for how long a creditor has to state their claim to their interest in the estate. This time could range anywhere from several months to two years.
Reading a Will Is Easier Than You Think
It is often said that what people fear most is the unknown, and this would be true for wills. If you don’t understand what is supposed to be in a will or what many of the words in a will mean, then reading a will can be a difficult task. This problem can be remedied by understanding that every will is designed to accomplish only a few specific things.
If you understand what those things are and some of the legal terminology used to accomplish them, then reading a will can be quite simple, and the only thing to fear about wills is fear itself.