The ABCs of Understanding Your Will

Welcome to our estate planning blog! Today, we're breaking down the ABCs of understanding your will. Estate planning might sound daunting with all its legal jargon, especially when it comes to wills. But fear not! We're here to simplify and demystify it for you.

Ademption: 

Ever left a specific item in your will to someone, only to realize you no longer own it when you pass away? That's ademption. Say you bequeathed your beloved Ferrari to your nephew in 2010, but sold it in 2011. Unfortunately, that gift is now void, and your nephew won't receive it.

Administrator: 

Every will needs someone to carry out its instructions. If you name an executor in your will, they'll handle your estate administration, to carry out your wishes. In New York, this term refers to the person who is appointed by the Court to administer your estate if you do NOT have a will, giving them the authority to manage your estate affairs (if you have a will, in New York, we call this person an “Executor” or “Executrix” - if you nominate a woman).

Affidavit: 

Concerned about challenges to your will? You can proactively address this by having your witnesses sign an "Affidavit of Attesting Witnesses" in the presence of a notary. This affirms, under oath, that they witnessed everything done correctly during the signing of your will, making it "self-proving."

Beneficiary: 

These are the lucky individuals or organizations named in your will to receive assets from your estate. It could be property, a specific item like jewelry, or even a sum of money. Charities often benefit from "planned giving" in wills.

Bequest: 

A bequest is a property transfer or gift specified in your will. It could be a specific item, a sum of money, or even a percentage of your estate.

Codicil: 

Instead of scribbling changes directly onto your will (a big no-no!), some states allow you to  draft a codicil. This separate document describes amendments to your original will, signed and witnessed just like the original.  This is NOT favored by New York courts and it would be best to create a new will and destroy the old will if you want to make any changes in your estate plan.

Contest: 

To contest a will means disputing its validity after the testator's passing. However, challenges must meet specific criteria, like proving the testator lacked mental capacity or was unduly influenced.

Duress: 

This occurs when someone is coerced/forced into signing a will against their free will. Witnesses play a crucial role in ensuring the testator isn't under undue influence when signing.

Escheat: 

Dying without a will means dying intestate. Each jurisdiction has rules for distributing such estates, often prioritizing spouses, children, and other relatives. Without heirs, the state may claim the assets and put them into “unclaimed funds.”  When this happens, the assets escheat to the state.  It is quite the process for distant relatives to claim these funds once they have escheated to the state.  

Estate: 

Your estate comprises all your assets at the time of your death. It's not just mansions and land; it includes everything from bank accounts to personal belongings.  Believe it or not, you have an estate the minute you become an adult.  

Executor: 

The person tasked with carrying out your will's instructions. It could be a friend, family member, law firm, or bank. Just be mindful of any fees involved as executors are entitled to a commission based on the state’s rules and the amount they have to manage.

Guardian: 

If you have children under 18, in your will you can nominate a trusted friend or loved one to be their legal guardian and care for your kids if you pass away before they turn 18. However, courts ultimately decide guardianship, often considering the named guardian's willingness and suitability.

Inheritance: 

What you receive from an estate is your inheritance. Taxation on inheritances varies by state.

Intestate: 

Dying without a will, legally referred to as “intestate,” means leaving your estate's distribution up to the courts who will follow the rules specified in your state of residence, following a standard formula.  You can easily look up your state’s intestate laws and decide if you need a will based on whether you are happy with the state’s intestacy distribution.  If you don’t like their formula, then you must do a will to leave alternative wishes.

Living Trust: 

A trust is a legal document, that specified distributions to loved one, just like a will, but it is established during your lifetime to manage and protect assets. A trust does NOT require a court to validate it, so many families prefer a trust to help reduce inheritance delays, probate court and attorney fees, and in some cases, taxes.

Living Will: 

Often confused with a last will and testament, a living will expresses your healthcare wishes if you are in an irreversible medical condition. It's effective while you're alive but becomes void upon death.

Probate: 

The legal process that authenticates wills after death, granting the executor authority to distribute the estate. Contrary to popular belief, a will cannot be validated until it is approved by the Court.  This can, depending on where you live, cause significant delays to your family if the courts are backed up.  In New York, the average wait time for a will to be probated is 6 months.  One of the biggest delays occurs because the courts require anyone who was disinherited to have an opportunity to dispute the will.  

Testator: 

That's you—the person expressing their final wishes in a will.

Trust: 

A legal agreement designed to hold assets for the benefit of someone or an organization.  There are several types of trusts.  Testamentary trusts, included in wills, are common for minor beneficiaries who can't inherit directly.  But intervivos trusts, also known as revocable living trusts or irrevocable trusts, do not require a court to validate it and are an amazing estate planning tool to avoid courts and avoid delays for loved ones receiving their inheritance.

Witness: 

Adults who confirm the testator's soundness of mind and willingness when signing the will. They don't need to know the will's contents; their role is to verify the testator's capacity and lack of coercion.

Understanding your will doesn't have to be intimidating. With these simplified definitions, you're well on your way to mastering estate planning. Stay tuned for more insights and tips from our estate planning experts!

About the Author

Leslie has been practicing law since 2009 and is the host of the estate planning podcast 'Legacy Purse'. She has a long history of representing family members struggling to inherit property and/or wealth from deceased family members through the Probate Courts. Knowing how time-consuming and expensive the probate process is, Leslie takes great pride in helping her clients learn how to plan and protect their families during their lives so they can avoid the probate court process and save their loved ones that additional grief (and expense).