A will or testament is a legal document that expresses a person's (testator) wishes as to how their property (estate) is to be distributed after their death and as to which person (executor) is to manage the property until its final distribution. For the distribution (devolution) of property not determined by a will, see inheritance and intestacy.
Intestacy is the condition of the estate of a person who dies without having in force a valid will or other binding declaration. Alternatively this may also apply where a will or declaration has been made, but only applies to part of the estate; the remaining estate forms the "intestate estate". Intestacy law, also referred to as the law of descent and distribution, refers to the body of law that determines who is entitled to the property from the estate under the rules of inheritance.
Wills have a lengthy history.
Probate is the judicial process whereby a will is "proved" in a court of law and accepted as a valid public document that is the true last testament of the deceased, or whereby the estate is settled according to the laws of intestacy in the state of residence of the deceased at time of death in the absence of a legal will.
Estate planning is the process of anticipating and arranging, during a person's life, for the management and disposal of that person's estate during the person's life, in the event the person becomes incapacitated and after death. The planning includes the bequest of assets to heirs and may include minimizing gift, estate, generation skipping transfer, and taxes. Estate planning includes planning for incapacity as well as a process of reducing or eliminating uncertainties over the administration of a probate and maximizing the value of the estate by reducing taxes and other expenses. The ultimate goal of estate planning can only be determined by the specific goals of the estate owner and may be as simple or complex as the owner's wishes and needs directs. Guardians are often designated for minor children and beneficiaries in incapacity.
A holographic will, or olographic testament, is a will and testament which is a holographic document, i.e., it has been entirely handwritten and signed by the testator. Traditionally, a will had to be signed by witnesses attesting to the validity of the testator's signature and intent, but in many jurisdictions, holographic wills that have not been witnessed are treated equally to witnessed wills and need only to meet minimal requirements in order to be probated:
A will contest, in the law of property, is a formal objection raised against the validity of a will, based on the contention that the will does not reflect the actual intent of the testator or that the will is otherwise invalid. Will contests generally focus on the assertion that the testator lacked testamentary capacity, was operating under an insane delusion, or was subject to undue influence or fraud. A will may be challenged in its entirety or in part.
In the law of property, a pretermitted heir is a person who would likely stand to inherit under a will, except that the testator did not include the person in the testator's will. Omission may occur because the testator did not know of the omitted person at the time the will was written.
Lapse and anti-lapse are complementary concepts under the US law of wills, which address the disposition of property that is willed to someone who dies before the testator.
Ademption, or ademption by extinction, is a common law doctrine used in the law of wills to determine what happens when property bequeathed under a will is no longer in the testator's estate at the time of the testator's death. For a devise (bequest) of a specific item of property, such property is considered adeemed, and the gift fails. For example, if a will bequeathed the testator's car to a specific beneficiary, but the testator owned no car at the time of his or her death, the gift would be adeemed and the aforementioned beneficiary would receive no gift at all.
A residuary estate, in the law of wills, is any portion of the testator's estate that is not specifically devised to someone in the will, or any property that is part of such a specific devise that fails. It is also known as a residual estate or simply residue.
Joint wills and mutual wills are closely related terms used in the law of wills to describe two types of testamentary writing that may be executed by a married couple to ensure that their property is disposed of identically. Neither should be confused with mirror wills which means two separate, identical wills, which may or may not also be mutual wills.
A bequest is property given by will. Historically, the term bequest was used for personal property given by will and deviser for real property. Today, the two words are used interchangeably.
A testamentary trust is a trust which arises upon the death of the testator, and which is specified in his or her will. A will may contain more than one testamentary trust, and may address all or any portion of the estate.
Irwin v. Gavit, 268 U.S. 161 (1925), was a case before the U.S. Supreme Court regarding the taxability, under United States tax law, of a divided interest in a bequest. It is notable for the following holding:
Allhusen v Whitell (1867) LR 4 Eq 295 is an English trusts law case which lays down a rule of equity which requires the trustee of a trust to strike a fair balance between the beneficiaries who are tenants for life and those who are remaindermen in respect of payment of the debts of an estate. The life tenant under a will is entitled to income earned after the testator's death, but it often takes some time to ascertain and settle all of those debts. In the meantime the assets of the estate are earning income for tenant for life, whereas the life tenant should only receive income from the estate net of the debts; the rule in Allhusen v White requires the life tenant to make a contribution.
Advancement is a common law doctrine of intestate succession that presumes that gifts given to a person's heir during that person's life are intended as an advance on what that heir would inherit upon the death of the parent. Not to be confused with an advance of someone's expected distribution from an estate currently in probate.
In English law, secret trusts are a class of trust defined as an arrangement between a testator and a trustee, made to come into force after death, that aims to benefit a person without having been written in a formal will. The property is given to the trustee in the will, and he would then be expected to pass it on to the real beneficiary. For these to be valid, the person seeking to enforce the trust must prove that the testator intended to form a trust, that this intention was communicated to the trustee, and that the trustee accepted his office. There are two types of secret trust — fully secret and half-secret. A fully secret trust is one with no mention in the will whatsoever. In the case of a half-secret trust, the face of the will names the trustee as trustee, but does not give the trust's terms, including the beneficiary. The most important difference lies in communication of the trust: the terms of a half-secret trust must be communicated to the trustee before the execution of the will, whereas in the case of a fully secret trust the terms may be communicated after the execution of the will, as long as this is before the testator's death.
The South African law of succession prescribes the rules which determine the devolution of a person's estate after his death, and all matters incidental thereto. It identifies the beneficiaries who are entitled to succeed to the deceased's estate, and the extent of the benefits they are to receive, and determines the different rights and duties that persons may have in a deceased's estate. It forms part of private law.
Wills, Estates And Succession Act of British Columbia (WESA) is a provincial statute that governs the law of inheritance in British Columbia, Canada. The bill was introduced in Legislative Assembly of British Columbia on September 24, 2009 and received royal assent on October 29, 2009. WESA amalgamated and in some cases replaced five earlier pieces of legislation. These include: Estate Administration Act RSBC 1996, c. 122,Probate Recognition RSBC 1996, c. 376, Wills Act RSBC 1996, c. 489, Wills Variation Act RSBC 1996, c.Law and Equity Act RSBC 1996, c. 253, s. 46, 49, 50 & 51 and Survivorship and Presumption of Death Act RSBC 1996, c. 444. WESA has given the court curative discretion under Part 5, and in Section 60 allows the court to invalidate and supplant testamentary instruments that are deemed by the court defective as regards proper maintenance and support of the will-maker's spouse or children.
