The Different People In A Will - Who to include
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Derek Lindsey describes who should be included in a will.
The most important person to appear is the person making the Will, the “Testator” (a female making a Will is known as the Testatrix”). It should be clear who is making the Will and, if they are known by different names, each of the names should be given. For example, I had a friend at school who was known to everyone, for some reason, as Jim but his real name was Keith. If all his assets were in the name of Keith but his Will was in the name of Jim, there could be problems in accessing these assets.
The Testator appoints“Executors” and “Trustees” to administer his Will (the female version of Executor is “Executrix”).The Executor’s role is to obtain probate (the formal legal procedure to proving that a Will is valid and the Executors have the right to administer the estate). Once probate has been obtained the Executors can gather in all the assets of the deceased and distribute them to the beneficiaries according to the terms of the Will. Legally the Executors give the assets to the Trustees to look after on behalf of the Beneficiaries until they distribute them. In the majority of Wills the Executors and Trustees are the same people. Where trusts are established under a Will the Testator may appoint different Trustees to administer the trusts (for example the parents of a minor may be appointed to look after the minor’s inheritance until they reach a certain age). It is advisable to appoint more than one Executor and Trustee, in case something happens to a sole appointee and he/she is unable to act.
If the Testator has children under the age of 18 (“minor children”) then it is imperative to appoint at least one “Guardian” to look after their welfare up to the age of 18 if both parents are deceased. It is important to note that if one parent has died and the other parent survives, and that parent has legal parental responsibility for the minor children, the surviving parent has precedence over the appointed Guardian(s). This could be the situation, for instance, where the parents have divorced and the children live with the mother and she has remarried and the step father has looked after the children as if they were his own. The natural father could well have the legal right to look after the children if the mother dies.
In the case of Executors, Trustees and Guardians it may be useful to appoint replacements in case the first choice appointees are not able to act.
Finally we come to the “Beneficiaries”. These are the people (or organisations such as charities) who will inherit the Testator’s assets. Again, to avoid any confusion, these people should be identified as clearly as possible. I know of one case where the Testator left a very simple Will. He just said “All to Mother.”. Now his mother was still alive at his death, but so was his wife, who he always referred to as “Mother”. Who did he mean to inherit? The Beneficiaries could be given specific gifts (or legacies) or a share of the residuary estate (after all the specific gifts, debts etc. have been dealt with). Again it is a good idea to think of replacement Beneficiaries in case the first choices die before the Testator.
May 2012
Disclaimer:
The most important person to appear is the person making the Will, the “Testator” (a female making a Will is known as the Testatrix”). It should be clear who is making the Will and, if they are known by different names, each of the names should be given. For example, I had a friend at school who was known to everyone, for some reason, as Jim but his real name was Keith. If all his assets were in the name of Keith but his Will was in the name of Jim, there could be problems in accessing these assets.
The Testator appoints“Executors” and “Trustees” to administer his Will (the female version of Executor is “Executrix”).The Executor’s role is to obtain probate (the formal legal procedure to proving that a Will is valid and the Executors have the right to administer the estate). Once probate has been obtained the Executors can gather in all the assets of the deceased and distribute them to the beneficiaries according to the terms of the Will. Legally the Executors give the assets to the Trustees to look after on behalf of the Beneficiaries until they distribute them. In the majority of Wills the Executors and Trustees are the same people. Where trusts are established under a Will the Testator may appoint different Trustees to administer the trusts (for example the parents of a minor may be appointed to look after the minor’s inheritance until they reach a certain age). It is advisable to appoint more than one Executor and Trustee, in case something happens to a sole appointee and he/she is unable to act.
If the Testator has children under the age of 18 (“minor children”) then it is imperative to appoint at least one “Guardian” to look after their welfare up to the age of 18 if both parents are deceased. It is important to note that if one parent has died and the other parent survives, and that parent has legal parental responsibility for the minor children, the surviving parent has precedence over the appointed Guardian(s). This could be the situation, for instance, where the parents have divorced and the children live with the mother and she has remarried and the step father has looked after the children as if they were his own. The natural father could well have the legal right to look after the children if the mother dies.
In the case of Executors, Trustees and Guardians it may be useful to appoint replacements in case the first choice appointees are not able to act.
Finally we come to the “Beneficiaries”. These are the people (or organisations such as charities) who will inherit the Testator’s assets. Again, to avoid any confusion, these people should be identified as clearly as possible. I know of one case where the Testator left a very simple Will. He just said “All to Mother.”. Now his mother was still alive at his death, but so was his wife, who he always referred to as “Mother”. Who did he mean to inherit? The Beneficiaries could be given specific gifts (or legacies) or a share of the residuary estate (after all the specific gifts, debts etc. have been dealt with). Again it is a good idea to think of replacement Beneficiaries in case the first choices die before the Testator.
May 2012
Disclaimer: