Put simply, the testator is the Will maker. But, in order to ensure a Will is legally binding, the tetator must ensure certain requirements are met.
The Role of the Testator
Whether a Will is written online, with a Will kit or by a soliciotor, the role of the testator remains the same. They are the central figure in the Will, tasked with determining the distribution of their assets and property. Other roles in a Will include the executor, witness, or named beneficiary. However, until someone becomes a testator by initiating the creation of the Will, these other roles cannot exist or be filled by people designated by the testator.
Basic Testamentary Requirements
For a testator’s Will to be considered valid, and for assets to be distributed according to the testator’s intentions, specific legal requirements must be met. These legal requirements vary between states, but generally speaking, they include:
- The testator must be of legal age (over 18) at the time of making the Will
- The Will must be in writing
- The Will must be signed by the testator
- The signature must be made by the testator in the presence of two or more witnesses who are not named in the Will
- The testator must have testamentary capacity when making the Will.
It's important to note that the testator must be of sound mind when they create the Will. They must be able to understand the nature and effect of the document they are creating and the consequences of their decisions. They must also have the capacity to make these decisions freely, without undue influence from others. If there is any doubt about the testator's mental capacity, it may be necessary to seek a medical evaluation.
The most important responsibility of the testator is to provide clear information to those that remain, and to the court about what is to be done with their estate. In their Will, they should address the topics of paying taxes and debts, paying for a funeral and cremation (or their preferred end-of-life memorial), distributing all property or transferring titles to new owners, and resolving any outstanding legal issues or claims. The instructions given by the Will must be made very clear, to avoid any confusion after the death of the testator. Ideally, the instructions should also be kept as simple as possible.
It is the duty of the testator to nominate one or more executors who will be responsible for handling the administration of their estate. Apart from naming executors, the testator must also provide them with detailed instructions to facilitate a prompt and complete resolution of the estate.
Finally, the testator must state their intent for the disposition of property. If any provision stated in the Will is out of the ordinary, the testator must provide enough information to avoid inconveniencing the executors and beneficiaries. Ultimately, the extent to which a testator can fulfil these responsibilities will dictate how stressful the process will or won’t be for everyone left behind.
Including a Letter of Wishes
The testator may also choose to include a letter of explanation with their Will, which provides further detail on their wishes and any motivations behind their decisions. Importantly, this letter is not legally binding, but it can provide valuable context and clarity for the executor and the beneficiaries.
- Further reading: Do you need Statement of Wishes
Ensuring the Testator’s Will is Valid
If a valid Will has not been made before a person dies, they are declared intestate and intestacy rules become applicable. In keeping with these rules, the court will decide who the assets should be distributed. The presiding judge will take into consideration factors such as who was closest to the deceased, and who was financially dependent on them (such as a spouse or children).
Even in scenarios where a valid Will exists, it might not include provisions for all assets. Complications may also arise if the Will was written too far in the past, and the testator’s circumstances have changed significantly. In such cases, the testator may be deemed partially intestate when they die. This can be avoided by keeping the Will up to date and making sure it is regularly reviewed.
Although it’s possible to create a Will on “the back of an envelope”, there are a number of requirements that must be met in order for Will to be deemed legally valid. The process may seem complex or intimidating, but it really needn’t be. The team at Willed have created a simple, step-by-step process to ensure testators indeed meet all the essential requirements of a valid Will. Unlimited updates mean that Willmakers can easily create a new Will each time there is a change in their circumstances too.
Now that you’re aware of the responsibilities, take charge by writing your Will online today.
Disclaimer: The content of this blog is intended to provide a general guide to the subject matter. This blog should not be relied upon as legal, financial, accounting or tax advice.