Will and testament

A will and testament is a formal legal document used to express a person's wishes. This person is known as the testator. The document explains how their estate, which is all their property, should be distributed after death. It also names an executor to manage the property until it is given away.

Without a valid will, a person is said to die intestate. In those cases, laws determine how property is shared. Historically, people thought a "will" applied only to real property like land. They thought a "testament" applied only to personal property. Today, the terms are used interchangeably for both types of assets.

To create a valid will, a person must have testamentary capacity. This means they must be of sound mind and able to make decisions. The testator must clearly identify themselves and state that they are making a will. This is often called publication. The document should also revoke all previous wills or codicils. A codicil is a document used to modify or partially revoke an existing will. Most jurisdictions require the testator to sign and date the document. This signature must appear at the very end of the text. If a signature is not at the end, the text following it may be ignored.

Different types of wills exist to meet various needs. A holographic will is written entirely in the testator's own handwriting. In Louisiana, this is called an olographic testament. These often do not require witnesses, but they must be dated and signed. Some people use a nuncupative will, which is an oral or dictated will. These are often limited to sailors or military personnel. There are also reciprocal or mirror wills made by spouses. These documents contain nearly identical provisions for each partner. A joint will is a single instrument made by two or more people. This type of will was first documented in English law in 1769.

The history of wills shows how legal language has evolved. The phrase "will and testament" comes from a time when English law used both Old English and Law French. Using both languages together helped provide maximum clarity. This practice created legal doublets, which are pairs of words used for one idea. Other examples include "breaking and entering" or "peace and quiet." According to the writer Plutarch, the written will was invented by Solon. Originally, it was a device intended only for men who died without an heir.

Rules regarding the freedom of disposition vary by legal system. In common law systems, like the United States or England, people generally have more freedom. However, complete freedom is not universal. Civil law systems often include restrictions such as forced heirship. This means certain family members are entitled to part of the estate. For example, in Louisiana, children are guaranteed a share of the estate. In England and Wales, the Inheritance Act of 1975 protects spouses. This law can prevent a will from leaving a spouse without reasonable financial provision.

Legal terminology helps define the specific parts of the process. A beneficiary is anyone receiving a gift or benefit from a trust. A bequest is a gift of personal property, while a devise is a gift of real property. A legacy traditionally refers to a gift of money. The process of settling an estate is called probate. During probate, an executor manages the assets under court supervision. If there is money left over after all debts and gifts are paid, it is called the residuary estate. This remaining portion goes to the residuary legatees.

People can prepare wills in several ways. Some use software or simple forms to write their wishes. Others choose to work with a lawyer to avoid technical mistakes. Lawyers can also include a will in an estate planning package. This might include a living trust to help manage assets. While not required, professional help can prevent a will from being invalidated. This is especially important if there are questions about a testator's capacity or influence. A well-made will ensures that a person's final choices are respected by the law.