A common will usually includes four main roles that different people must fill for the will to be valid. Normally, these roles include:
- A testator (or testatrix — a female testator)
- An executor (or executrix — a female executor)
- One or more beneficiaries
- Two or more witnesses (depending on the type of will being created)
Each person has a very distinct role to play in the creation of a valid will. Of all of these roles, the testator, who is the person who creates the will, is the most important, because a will cannot exist without a testator.
Jump ahead to these sections:
- Who’s Considered the Testator or Testatrix?
- What Does It Mean to Be of “Sound Mind” or “Mentally Competent”?
- What is the Testator Responsible For?
However, a testator sometimes can create a valid will without an executor, beneficiary, or witness. Until someone becomes a testator by executing a will, these other roles cannot exist. The testator creates these roles and designates the people who will fill them.
Post-planning tip: If you are the executor for a deceased loved one, you have more than just the details of the will to think about. Handling their unfinished business can be overwhelming without a way to organize your process. We have a post-loss checklist that will help you ensure that your loved one's family, estate, and other affairs are taken care of.
Who’s Considered the Testator or Testatrix?
Anyone who creates a will for himself or herself is a testator or testatrix. These terms are just an old-fashioned way of distinguishing between a male and a female creator of a will. Nowadays, courts and lawyers usually refer to both as a “testator.”
Each state decides for itself who can have a will or who qualifies as a testator. Most states require only two things to qualify. You must be:
- At least 18 years of age
- Of “sound mind” or mentally competent
What Does It Mean to Be of “Sound Mind” or “Mentally Competent”?
Most people have a general idea of what it means to be of “sound mind” or “mentally competent” but may have a difficult time explaining what it means. For purposes of being able to have a valid will, however, there is a precise legal definition of what that means.
Legally, being of sound mind or mentally competent to make a will requires that, at the time you sign your name on the will, you are able to know three specific things:
- Your property
- The “natural objects of your bounty”
- The nature of your bequest
Let’s go over what each of these three requirements really means.
What does it mean “to know your property”?
To “know your property” means that you understand what property you own and have a legal right to give to someone else (a beneficiary) when you die. For example, suppose you own the typical things that most people own:
- A house
- A car
- Some personal property (like jewelry, books, or pictures)
- Money in a bank account
If you include these items in your will as the possessions that you want to give away when you die, then you demonstrate that you understand that these possessions belong to you and that you have a legal right to dispose of them in your will. You know your property.
However, if you write in your will that you would like your grandchild to have the Brooklyn Bridge when you die (assuming you do not really own the Brooklyn Bridge!), then this is an indication that you do not understand what property you own and are entitled to give away when you die.
Therefore, you may not be “of sound mind” or “mentally competent” to make a will.
What does it mean “to know the natural objects of your bounty?”
To “know the natural objects of your bounty” means that you understand the people who are related to you most closely, like a spouse or child. These are the ones who most people would naturally want to leave their property to when they die.
This does not mean you have to leave your property to them, but if your mental state is such that you do not understand who your spouse and children are, then this is an indication to your attorney, the court, or someone challenging your will that you do not understand the natural objects of your bounty and, therefore, may not be of sound mind to be able to execute a will.
What does it mean “to know the nature of your bequest”?
A “bequest” is your legacy or what you leave to someone in your will when you die. To know the nature of your bequest means that you understand the consequences of what you are doing by signing your will.
You understand that by signing your will, you are bequeathing the property that you own to someone else who will take legal title and possession of that property when you die.
If you do not understand the basic legal consequence of signing a will to be the legal transfer of property upon death, then you may not have the mental capacity to be able to execute a valid will.
However, as long as you are at least 18 years of age and understand what property you own, who your close relatives are, and the effect of what you are doing when you sign your will, then you are legally qualified to be a testator and have a will.
What is the Testator Responsible for?
The main job of a testator is to provide information to the court (and to your family) about what you would like them to do with your estate now that you are deceased. The whole point of having a will is to inform everyone what you want to happen to your property.
One of the main benefits of this is that it can keep your family and friends from fighting over what they think you would want to do with it. For people who die without a will, this is often what happens.
As a testator, here are the three most important things you are responsible for doing when you have a will:
Clearly state your intent to have a will
Have you ever wondered why there has always been so much formality in signing a will?
- It normally involves an attorney.
- People gather together in one room.
- The testator may make a statement: “I intend this to be my last will and testament.”
- Everyone watches as the testator signs it.
- Then two more people (witnesses) sign their names.
- Yet another person (a notary public) may then sign the document.
- Someone then secures the document in a safe place until it is presented to a judge.
Do you really need four people to sign the document? Is there a reason you need three people to watch you sign your name? The answer is yes.
These formal requirements demonstrate the significance of what is taking place. They also help the court to know that the testator truly intended this document to be a will — a final statement of intent for the disposition of the testator’s property.
Why else would someone jump through all these hoops if he did not really want this to be his will? By doing these things in front of other people, the testator makes a statement that “I am not at all undecided. What is written here is truly what I intend to be my will.”
Clearly state your intent for the disposition of your property
As a testator, not only must you clearly demonstrate that you want this particular document to be your will, you also must be clear in telling the court what to do with your property.
If there is any ambiguity about what is written in the will, such as what property you were referring to or what beneficiary you intended to have your property, then the court will not be able to do what you intended.
Instead, the court will give whatever property it does not know what to do with to your closest living relative. If this is not what you want, then you must be very clear in your will about what you do want.
Be as comprehensive as you can be
Another purpose of having a will is to make it as easy as possible on your family and the court to settle your entire estate. This includes:
- Appointing someone (an executor) to handle all the details.
- Paying all your taxes.
- Paying off your debts.
- Paying for your funeral and burial.
- Distributing all of your property.
- Transferring title to the new owners of your property.
- Resolving any outstanding legal issues or claims.
It is the testator’s responsibility to speak to all of these things so that the court does not have to decide for you and your family does not have to fight to figure it all out. The court wants a prompt and complete resolution of your estate.
To the extent that you can state your intent about everything you own and all the issues that must be addressed, it makes this stressful process a lot easier on everyone you leave behind.
A Testator Has the Most Responsibility When Creating a Will
There is no will without a testator. To be a testator, you must assume a lot of responsibility. By doing so, you make things much easier on your family members, all of whom are likely grieving your loss as they try to settle your estate.
In this sense, you not only make a will for yourself — you make it for your family members as well. Sharing your property with your family is important, but sometimes the greater gift is sharing your intent. The best way to do this is to have a will.
Now that you're familiar with what a testator does and doesn't do, it might be a good time to take the first step and create a will. You can compare the most popular attorneys and services below.
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