A testator is a legal term used to describe someone who has died and left a will. A will — also sometimes referred to as a testamentary will or last will and testament — is a legally binding document that contains the final wishes of the testator in the event of their death. Typically, a will includes things such as:
Instructions for the distribution of assets and property: These instructions can pertain to things like bank accounts, brokerage accounts, real estate property and other personal property (for example, vehicles, jewelry or collectibles).
Guardianship for minor or disabled children: Guardianship typically applies to minor children who are younger than 18. However, it might also apply to disabled children who are older than 18.
Assignment of an executor for the estate: An estate executor is a person, bank or trust company tasked with carrying out the wishes of the deceased person according to the terms of the will. Executors are legally bound to:
Distribute assets in the estate to the rightful heirs.
File the death certificate and will with the court.
Oversee the probate process.
Send death notices to beneficiaries and creditors.
Handle ongoing expenses and pay outstanding debts or taxes from the estate.
Charitable donations: Many people will name a charitable organization in their will to receive a set dollar amount, percentage of the estate or property that the charity can use or sell at its discretion. This is sometimes referred to as making a charitable bequest. Assets that you give to charity are excluded from your taxable estate.
What happens if I die without a will?
The legal term for dying without a written will is called dying intestate. Effectively, this means that assets in your name will be distributed according to the laws of your state, which may not always be favorable for your heirs.
How dying intestate could affect guardianship
If you have children who are not yet 18 or unable to take care of themselves, writing a will allows you to choose who will take over as the guardian of your children. If you die without a will, the courts will determine guardianship of your children, which may not be in line with your wishes.
Most people assume that if both parents of a minor child die, guardianship will automatically be assigned to next of kin (grandparents, aunts and uncles or adult children), but this is not always the case. In North Carolina, for example, the law states that anyone can apply to be appointed guardian of your children.
How dying intestate could affect asset distribution
In some states, the law states that your assets will be distributed to your closest relatives if you die intestate. In Texas, for example, assets would be distributed to your spouse and children before expanding to other relatives.
The law does not take into account your relationship with family members, so having a written will in place can prevent assets in your name from being given to estranged family members — or even people you’re related to and never met.
Things to consider when writing a will
Validity of the will
In most states, a will is considered valid if it has been put in writing, witnessed by at least two individuals, signed by the testator and notarized. The will must also comply with the state laws in which the will is created or where the testator lives.
The testator must also have what is known as testamentary capacity at the time the will is written and signed. Under testamentary capacity law, most states require that you are at least 18 years old and that you have the mental capacity to know the nature and extent of your property and understand the disposition of assets to named heirs according to the terms of the will. If a court determines that a testator lacked capacity or intent when the will was created, the will is considered void.
What does and does not go through probate
Probate is the court-supervised legal process for distributing the assets of a deceased person. The estate executor must file a copy of the will and death certificate with the court. Assets named in a valid will are generally subject to the probate process, which can take months or even years. But you can avoid this time-consuming process, at least in part, by putting your assets in accounts that aren’t subject to probate.
Generally, assets are subject to probate if they exceed a certain amount. For example, in California, if a person’s assets are over $184,500, they’re typically subject to probate.
But there are exceptions for assets in certain types of accounts. Assets that avoid probate and are automatically distributed upon death generally include:
Assets held in a joint tenants with rights of survivorship, or JTWROS, account.
Assets held in a transfer on death, or TOD, account.
Accounts with beneficiaries listed, such as retirement accounts.
Life insurance policies and retirement accounts like IRAs, Roth IRAs, 401(k) plans or 403(b) plans are distributed to your named beneficiaries upon your death. It is important to make sure your beneficiaries are up to date because accounts without a named beneficiary will become subject to probate.
It’s important to note that you can also name “contingent beneficiaries” on retirement accounts or life insurance policies. A contingent beneficiary is essentially a backup beneficiary, meaning that if the original beneficiary dies before you do and you have not updated your beneficiary information, the assets would pass to the contingent beneficiary without having to go through probate.
Power of attorney
In addition to making sure you have a valid will, you might consider establishing a power of attorney, or POA, as part of your estate planning process. A POA grants one or more people to act on your behalf in financial or medical matters should you become incapacitated or unable to do so on your own. Powers of attorney and wills are often created together, but they are separate documents.