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Legal Matters: Defining the Building Blocks of a Will

Kcolorby Kathleen G. Moriarty, Peters and Moriarty, Attorney and Consular at Law

I sat down to write this column over the weekend, and it occurred to me that I often jump into a topic with the assumption that the basic terms are understood. Although I try to define things as I go along, I thought it best to lay out some of the basics — a primer, if you will.

Last Will and Testament: The document that directs how a person’s real and personal property will be distributed after her death. By law, only certain property can be passed by will — “probate assets.”

Testator: The person whose will is being drafted; he will be known as the decedent upon his death.

Probate Assets: Including, but not limited to, these are the Testator’s personal and real property — most commonly, a person’s home, vehicles, personal items.

Non-probate Assets: Some property does not pass by will, because it is controlled by a contract between the owner of the property (the Testator) and the entity holding or managing the property — IRAs, 401K plans, and life insurance policies are good examples. These accounts require the owner to list a beneficiary of the account, and, upon the owner’s death, the beneficiary automatically benefits. With few exceptions, the contract controls, and an account that is mistakenly listed as a gift in a will is disregarded.

Specific Bequest: This is exactly what it says it is. It is the line that reads, “I give, devise and bequeath my antique shoe shining kit to …” I have one, I love it, and I know whom I’m leaving it with.

These gifts can be most anything but are often donations to a church, a gun collection, furniture, vehicles or real property. A person may make one, none or many specific bequests. What happens if these items don’t exist upon the Testator’s death is another article.

Residuary Clause: This is a catch-all. It is the line that reads, to some degree of variation, “I leave the rest, residue and remainder of my estate, being real or personal, wheresoever situate, to…” Married couples, for instance, often draft wills that mirror each other — each will leaves everything to the remaining spouse and then to the children.

Executor: (feminine, Executrix) This is the person responsible for making sure the Testator’s wishes are carried out. This position is not presumed valid; the Executrix must apply to Surrogate’s Court to be appointed officially as Executrix. Appointment usually is not difficult to obtain, but this process will be addressed in a forthcoming article as well. Once appointed, the Executor is responsible for signing any paperwork necessary to sign over deeds or vehicle titles, among other administrative tasks.

Guardian: Parents of minor (under 18) children often appoint a friend or family member to take care of their children in the event that both parents are deceased. Guardians should be made aware of this responsibility prior to being listed in a will.

Trustee: This person is responsible for managing any financial accounts that are set aside through the will (or a trust) for another person. The most common example is when parents appoint a trustee to manage a trust set up for minor children in the event that both parents decease. The Guardian and the Trustee may be the same person in this case, but for many reasons parents often choose two separate people.

Witness: New York requires a will to be witnessed by two people who acknowledge that the Testator was of sound mine, declared the document to be his will, and had knowledge of the property to be passed through the will.

This list is meant as a reference for the basics of drafting a will and is not meant to be all-inclusive; nor is it meant to be a “recipe” for a will. As always, when preparing a legal document, it is wise to consult an attorney to ensure that your wishes are properly carried out.

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