A testator is a person who creates a will. Commonly, a female who makes a will is referred to as a “testatrix,” though some do not follow this formal title. A will is a document that someone can create either himself, or with the help of an attorney, that dictates who will inherit his property and assets upon his death.
A will also directs how a person’s debts and liabilities will be paid upon his death, and by whom. The person in charge of carrying out the wishes recorded in someone’s will is called an “executor.” To explore this concept, consider the following testator definition.
Definition of Testator
- A person who makes a will.
- A person who had passed away, leaving a will.
1275-1325 Latin testātor
What is a Testator
A testator is a person who creates a will. If a person dies before he has the chance to create a will, then he is said to have died “intestate.” A person must be of sound mind when he creates a will, otherwise the will could be invalidated by the court.
In order to ensure that the person is of sound mind, several witnesses must be present when the will is signed, and their information and signatures are captured on the last page of the will. The creator of the will must also be free of coercion or duress when creating the will. If a court finds that he was, in fact, forced to sign the will against his own wishes, the court may choose to void all or part of the will.
What is a Will
A last will and testament, more commonly called a “will,” is a legal document that clearly documents a person’s final wishes for after his death. A will dictates how the person wants his property distributed, whether among his heirs, or to charity organizations, for example, as well as how any debts he left behind should be taken care of. In the will, the individual names the person he wants to be responsible for carrying out the provisions of his will – this person is known as the will’s “executor.”
A will may also name a guardians for the person’s minor children in the event that the individual dies before his children are of the age to legally take care of themselves. Wills can also be used to designate caretakers for a person’s pets. It is the Probate court that reads the individual’s will, upon his death, to ensure it is valid, and that the named executor is able to take on the responsibilities required of him or her.
Do You Need a Lawyer to Create a Will
Someone who is interested in creating a will can either consult an attorney, or draft the will himself. An attorney is not necessary for the creation of a will, and indeed, there are a variety of good will templates available online. The key is to be as clear and as detailed as possible when writing the will, so that there is no room for misinterpretation. Some examples of testator consideration prior to creating a will include:
- Executor – It is important to choose a person the testator trusts to handle his affairs according to his wishes. He may also want to name more than one executor over his property, in case the first is unable to act. In this case, it is common to specify several levels of executors.
- Guardians – It may be important to designate a guardians for his children, as well as their property, until they reach adulthood.
- Trust – A will may be drafted specifying that all, or certain, property and assets have been put into a trust, to be distributed according to the provisions of that trust. Setting up a trust enables the individual to be very specific about how and when his children will receive the assets, such as when they reach the age of 21, or when they get married.
However, there are some situations in which it is likely you need a lawyer to create a will, as the circumstances are more complicated. Examples of a testator concerns can include:
- Disinheritance – A testator may want to contact an attorney if he wants to leave someone out of his will that would otherwise inherit his property by law, such as a spouse or a child.
- Challenges – If the testator suspects that a family member may cause trouble and challenge the will, then he may want to contact an attorney to see about how to handle that kind of situation.
- Estate Taxes – If the testator is concerned about how his estate taxes will be paid upon his death, then he may want to consult with an attorney.
- Caregivers – If there are any complications involved with establishing caregivers for children or pets, then the testator may want to check with an attorney on how to handle this section.
- Long-Term Concerns – If the testator is concerned about how his property will be handled in the long-term, he may want to consult with an attorney insofar as how to draft up the will, or whether it would be best to create a trust, so that his long-term wishes are explicit and understood.
How to Create Your Own Will
Anyone can create a will. There is no need to involve attorneys, and incur attorney’s fees, so long as the estate is a simple and straightforward one. A good will template can help you create your own will. However, if there are more complicated issues, then it may be in the person’s best interest to consult with an attorney, either before creating a will, or to review the will once it has been drafted, before signing.
The laws governing the creation and execution of wills and trusts vary by state. In most states, two witnesses are required to be present when the testator signs. The witnesses are testifying that the testator is: (1) of legal age (typically 18 or over); (2) of sound mind (legally competent to make such decisions); and (3) signing the document of his own free will, without coercion.
Being of sound mind means that the testator is able to understand the details of his estate and his assets, his legal heirs, and his relation to those heirs.
To create a will, it is necessary to have two witnesses present who can confirm that the person creating the will is of sound mind and is of legal age, which is typically over the age of 18. Being “of sound mind” means being able to think, reason, and understand the ramifications of the decisions being made, being able to make decisions that are in the individual’s best interests. A person who has a medical condition that restricts his ability to understand things, for instance, would not be of sound mind.
Example of an Unsound Mind
Seventy-year-old Amanda has been hospitalized for a few weeks with pneumonia and pleurisy. She was on many medications, including pain medications, around the clock. Her grandson Thomas, realizing that she may not live through this infection, helps her prepare a will, and brings in two people to witness her signing it.
After Amanda’s death, her other grandchildren are surprised to learn she had a will, as she had never created one before becoming sick, and was too ill and often confused after she went into the hospital. When they discovered their grandmother had supposedly left her home and other high-value assets to Thomas, even though he had been somewhat estranged from the family for a few years, they were shocked.
At the probate court hearing, the family points out to the judge that the will was signed and witnessed at least a week after Amanda had been in the hospital, when she was under heavy medication, and seemed to be quite confused most of the time.
In this example, the testator – Amanda – was not of sound mind when she supposedly created and signed the will. It is likely the court would invalidate the will, appoint an executor of the estate, and put the entire thing through the lengthy probate process.
Provisions of a Will
In writing a will, the testator writes a statement to the effect that the document he is creating his Last Will and Testament, and that the will is intended to control how his estate is to be distributed. The testator should then name the executor of the will, as well as any alternate executors should the first be unable to serve.
Leaving an item or asset to someone is called a “testamentary gift.” Each such gift should be specifically listed and described, and designated to a specified beneficiary. In doing so, the testator should use specific names, including prefixes (Mr./Mrs.) and suffixes (Jr., III, etc.), so as to prevent any confusion.
Upon completion, the will must be signed and dated in the presence of two adult witnesses, who are not blood related, and who aren’t beneficiaries of the will. The witnesses must sign the will, testifying that they witnessed the testator’s signature, and that he seemed to be of sound mind at the time. In many states, all of the signatures on a will – including the witness signatures – must be notarized.
Because the witnesses are not required, or even allowed to read the will before signing as witnesses, just about any adult, who is not related or a beneficiary, can be recruited for the task. Friends, neighbors, co-workers, office workers in the testator’s attorney’s office (if the will was created by an attorney), and even employees in the notary’s office are potential witnesses. Because it is necessary to have the witnesses together with the testator and notary to finalize the document, many people find it convenient to have a mobile notary come to their home.
Testator Example Involving a Hand-Written Will
In 2015, the Supreme Court of California decided the case of In re Estate of Duke, which is an example of a testator case in which the court had to decide the legal heirs to a will. This was because the testator did not cover all of his bases when writing his will.
In this case, Irving Duke had created a holographic will, which is a will that is written entirely by hand, rather than typed up and printed. Some states do not recognize holographic wills at all. Those who do recognize them insist that the will meet certain legal requirements before deeming it to be an official legal document. This case is an example of a testator who probably should have sought legal counsel, or at least researched state law, upon creating his will.
In Duke’s will, he specified that upon his death, his wife Beatrice would inherit his entire estate, with the exception of a single dollar he left to his brother. Duke specifically, in the will, excluded all other possible heirs.
Duke specified that, should he and his wife die at the same time, certain specified charities that were important to them would inherit his entire estate. The will did not contain a provision, however, to specify what was to happen if Duke outlived his wife, which is exactly what happened. Beatrice died in July of 2002, while Irving died in November of 2007. Irving did not remarry, and he had no children when he died – nor did he think there was any reason to revise his will.
In March of 2008, two charities, the City of Hope and the Jewish National Fund, petitioned the court for a probate of the will, which is the establishment of its validity. They also asked for letters of administration, which are granted by the court to establish who has control over someone’s estate when he dies without leaving a will. In October of that same year, Robert and Seymour Radin, sons of Irving’s sister Rose, filed a petition alleging that they were entitled to Irving’s estate as his sole intestate heirs.
The Radins did not challenge the validity of Irving’s will. Instead, they argued that Irving’s estate was to pass to them because Irving did not die before Beatrice, nor did Beatrice and Irving die at the same time. Since Irving did not account for what would happen if neither of those situations came to pass, the terms of the will had already been met. The two charities argued that Irving had intended the will to provide for his estate to be distributed to them in the event that Beatrice was not alive when Irving died.
The probate court held that the will was written clearly and was unambiguous in the statements actually contained in the will. Therefore, the court declined to hear any further evidence of Irving’s intent insofar as distribution to the charities, and granted summary judgment for the Radins.
The charities appealed the ruling to the Supreme Court of California, which reversed that decision, holding that an unambiguous will can be interpreted to follow the testator’s intent at the time that he drafted the will. The California Supreme Court then remanded the case back to the appellate court with directions to remand the case back to the trial court for reconsideration of the additional evidence.
Related Legal Terms and Issues
- Coercion – The act of using force or intimidation to ensure compliance.
- Duress – Threats, intimidation, or bullying intended to force someone to do something.
- Executor – A person appointed by a testator to carry out the terms of his will.
- Probate – The court process by which a Will is proved valid or invalid.
- Probate Court – The division of the judicial system that deals with matters relating to wills, trusts, estates, guardianships, and conservatorships.