Accounting: (from Investorguide.com): estate accounting (n.) The preparation of financial accounts by the person administering the estate of someone deceased.
Administrator: (from Duhaime.org): A person who manages (administers) the assets of another, such as an estate administrator or the administrator of an insurance plan.
Administrators are fiduciaries.
(See also: Executor; Executrix)
Adverse: (from thelawdictionary.org): Opposed; contrary; in resistance or opposition to a claim, application, or proceeding.
Ante-nuptial: (from uslegal.com): (also known as a “pre-nup”) An ante-nuptial agreement is a written contract created by two people planning to be married. The agreement typically lists all of the property each person owns, as well as their debts, and it specifies what each person’s property rights will be after they tie the knot. Antenuptial agreements often specify how property will be divided — and whether spousal support (alimony) will be paid — in the event of a divorce.
A premarital agreement shall be in writing and signed by both parties. Such agreement shall be enforceable without consideration and shall become effective upon marriage.
After marriage, an ante-nuptial agreement may be amended or revoked only by a written agreement signed by the parties. The amended agreement or the revocation is enforceable without consideration.
Advantages of ante-nuptial agreements for both parties are: (a) Avoiding Litigation Costs, (b) Protecting Family Assets, (c) Protecting Business Assets, (d) Protection Against Creditors, (e) Child Custody and Support Guidelines and (f) Predetermined Disposition of Property.
See also: “prenuptial; pre-nup.”
Appraisal: (from Black’s Law Dictionary): 1. An evaluation done to determine an items worth. 2. when an appraiser assesses market value, estimates damage, and determines loss. It is written and effects the value of the property. AKA valuation.
Bad Faith (1): (from Wests Encyclopedia of American Law): The fraudulent deception of another person; the intentional or malicious refusal to perform some duty or contractual obligation.
Bad Faith (2): (from Gerald N. Hill and Kathleen T. Hill): 1) n. intentional dishonest act by not fulfilling legal or contractual obligations, misleading another, entering into an agreement without the intention or means to fulfill it, or violating basic standards of honesty in dealing with others. Most states recognize what is called “implied covenant of good faith and fair dealing” which is breached by acts of bad faith, for which a lawsuit may be brought (filed) for the breach (just as one might sue for breach of contract). The question of bad faith may be raised as a defense to a suit on a contract. 2) adj. when there is bad faith then a transaction is called a “bad faith” contract or “bad faith” offer.
The opposite of “good faith.”
Beneficiary: (from Gerald & Kathleen Hill): n. a broad definition for any person or entity (like a charity) who is to receive assets or profits from an estate, a trust, an insurance policy or any instrument in which there is distribution. There is also an “incidental beneficiary” or a “third party beneficiary” who gets a benefit although not specifically named, such as someone who will make a profit if a piece of property is distributed to another. (See: incidental beneficiary)
Beneficiary: (from West’s Encyclopedia of American Law): An organization or a person for whom a trust is created and who thereby receives the benefits of the trust. One who inherits under a will. A person entitled to a beneficial interest or a right to profits, benefit, or advantage from a contract.
Black Letter Law: ( from Nolo’s Plain-English Law Dictionary): Legal rules that are so well settled that they require little or no legal discourse. Also called “hornbook law.”
AKA: “Playground law” or basic fairness that could be understood by a third-grade student. Widely accepted law that governs daily living, for example:
A runner can not “win” a race by cutting off a part of the route.
Partners can’t hide assets in a divorce.
A contractor can’t hide that their work does not meet code.
A real estate agent must tell a buyer if a building has rats.
A mechanic can’t keep your car for repairs and use it for a “road trip.”
Your accountant can’t “save” you money by filing false tax returns.
Breach: (from law.com): 1) n. literally, a break. A breach may be a failure to perform a contract (breaking its terms), failure to do one’s duty (breach of duty, or breach of trust), causing a disturbance, threatening, or other violent acts which break public tranquility (breach of peace), illegally entering property (breach of close), not telling the truth-knowingly or innocently-about title to property (breach of warranty), or, in past times, refusal to honor a promise to marry (breach of promise). 2) v. the act of failing to perform one’s agreement, breaking one’s word, or otherwise actively violating one’s duty to other.
Chancery Court: (from Black’s Law Dictionary): A court having the jurisdiction of a chancellor; a court administering equity and proceeding according to the forms and principles of equity. In England, prior to the judicature acts, the style of the court possessing the largest equitable powers and jurisdiction was the “high court of chancery.” In some of the United States, the title “court of chancery” is applied to a court possessing general equity powers, distinct from the courts of common law. Parmeter v. Bourne, 8 Wash. 45, 35 Pac. 5SO. The terms “equity” and “chancery,” “court of equity” and “court of chancery,” are constantly used as synonymous in the United States. It is presumed that this custom arises from the circumstance that the equity jurisdiction which is exercised by the courts of the various states is assimilated to that possessed by the English courts of chancery. Indeed, in some of the states it is made identical there with by statute, so far as conformable to our institutions.
(See also, Court of Equity).
Client: (from Black’s Law Dictionary): A person who employs or retains an attorney, or counsellor, to appear for him in courts, advise, assist, and defend him in legal proceedings, and to act for him in any legal business.
Concealment (1): (from Black’s Law Dictionary): A neglect to communicate that which a party knows, and ought to communicate, is called a “concealment.”
The improper suppression or disguising of a fact, circumstance, or qualification which rests within the knowledge of one only of the parties to a contract, but which ought in fairness and good faith to be communicated to the other, whereby the party so concealing draws the other into an engagement which lie would not make but for his ignorance of the fact concealed.
Concealment (2): (from U.S. Law.com): Concealment is the act of refraining from disclosure especially an act by which one prevents or hinders the discovery of something; a cover-up. It is an affirmative act intended or known to be likely to keep another from learning of a fact of which s/he would otherwise have learned. Such affirmative action is always equivalent to a misrepresentation and has any effect that a misrepresentation would have For example, the unlawful suppression of any fact or circumstance by one of the parties to a contract from the other, which in justice ought to be made known, will amount to concealment.
Under insurance law, concealment refers to the insured’s intentional withholding from the insurer material facts that increase the insurer’s risk and that in good faith ought to be disclosed.
(See also: “fraudulent concealment”)
Consent: (from: Gerald N. Hill and Kathleen T. Hill. 1) n. a voluntary agreement to another’s proposition. 2) v. to voluntarily agree to an act or proposal of another, which may range from contracts to sexual relations.
Consent: (West’s Encyclopedia of American Law): Voluntary Acquiescence to the proposal of another; the act or result of reaching an accord; a concurrence of minds; actual willingness that an act or an infringement of an interest shall occur.
Consent is an act of reason and deliberation. A person who possesses and exercises sufficient mental capacity to make an intelligent decision demonstrates consent by performing an act recommended by another.
Consent assumes a physical power to act and a reflective, determined, and unencumbered exertion of these powers. It is an act unaffected by Fraud, duress, or sometimes even mistake when these factors are not the reason for the consent. Consent is implied in every agreement.
Parties who terminate litigation pursuant to a consent judgment agree to the terms of a decision that is entered into the court record subsequent to its approval by the court.
In the context of rape, submission due to apprehension or terror is not real consent. There must be a choice between resistance and acquiescence.
(See also: Informed Consent)
Conservator: (from wvlegalservices.org): A conservator is a person who is responsible for managing your estate and financial affairs. A conservator is appointed by a judge after he or she determines that you are incapacitated.
Court of Equity: (from Law.com): n. originally in English common law and in several states there were separate courts (often called chancery courts) which handled lawsuits and petitions requesting remedies other than damages, such as writs, injunctions and specific performance. Gradually the courts of equity have merged with courts of law. Federal bankruptcy courts are the one example of courts which operate as courts of equity.
See also: chancery court
Damage: (from Blacks Law Dictionary): Loss, injury, or deterioration, caused by the negligence, design, or accident of one person to another, in respect of the latter’s person or property.
Disclosure (legal): (from nolo’s plain English law dictionary): The making known of a fact that had previously been hidden; a revelation.
For example, in many states you must disclose major physical defects in a house you are selling, such as a leaky roof or potential flooding problem; and in all states, you must disclose the presence of lead-based paint hazards in buildings constructed before 1978.
Disclosure (accounting): (from businessdictionary.com): 1.Accounting: Statutory or good faith revelation of a material fact (or an item of information that is not generally known) on a financial statement or in the accompanying notes (footnotes). 2.Auditing: Compulsory reporting of all positive and negative information about the audited firm in an audit report. Its objective is to enable creditors and investors to draw an informed conclusion about the firm’s financial position. 3.Banking: Statutory statement of complete information about a consumer or home mortgage loan. It is required to contain certain items of information such as (1) actual interest rate, (2) its computation, (3) itemized total of all charges and fees, and (4) minimum monthly payment.
Duty: (from Black’s Law Dictionary): As a technical term of the law, “duty” signifies a thing due; that which is due from a person; that which a person owes to another. An obligation to do a thing. A word of more extensive signification than “debt,” although both are expressed by the same Latin word “debitum.”
In its use in Jurisprudence, this word is the correlative of right. Thus, wherever there exists a right in any person, there also rests a corresponding duty upon some other person or upon all persons generally.
In practice it is commonly reserved as the designation of those obligations of performance, care, or observance which rest upon a person in an official or fiduciary capacity ; as the duty of an executor, trustee, manager, etc.
Elect Against the Will: Aka: Right of Election (from legal-dictionary.com): The prerogative of a surviving spouse to accept the provision the dead spouse made in the will or to disregard the will and claim the share specified by statute.
At death spouses commonly leave money and property to their surviving husband or wife. This estate is granted in a formal legal document known as a will, established by the deceased person (the decedent). But a will is not the final word on what happens to the decedent’s estate. The surviving spouse may either accept the provisions of the will or choose an alternative called the right of election. In most states statutes specify a portion of the estate that the surviving spouse can elect to take instead of receiving the amount specified in the will. The right of election ensures that the spouse receives a fair share of the estate.
Estate: (from Wikipedia): An estate is the net worth of a person at any point in time alive or dead. It is the sum of a person’s assets – legal rights, interests and entitlements to property of any kind – less all liabilities at that time. The issue is of special legal significance on a question of bankruptcy and death of the person. (See inheritance.)
Depending on the particular context, the term is also used in reference to an estate in land or of a particular kind of property (such as real estate or personal estate). The term is also used to refer to the sum of a person’s assets only.
Executor: (from findlaw.com): An executor is someone named in a will, or appointed by the court, who is given the legal responsibility to take care of a deceased person’s remaining financial obligations. This means taking care of everything from disposing of property to paying bills and taxes. Most executors are immediate family members, with spouses, children and parents being the most common executors.
Executors are fiduciaries.
See Also: Administrators
Fair: (from Merriam Webster): 6(a): Marked by impartiality and honesty: free from self-interest, prejudice, or favoritism <a very fair person to do business with>
b (1) : conforming with the established rules.
Fair dealing: (from law.com) n. a general assumption of the law of contracts, that people will act in good faith and deal fairly without breaking their word, using shifty means to avoid obligations or denying what the other party obviously understood.
A lawsuit (or one of the causes of action in a lawsuit) based on the breach of this covenant is often brought when the other party has been claiming technical excuses for breaching the contract or using the specific words of the contract to refuse to perform when the surrounding circumstances or apparent understanding of the parties were to the contrary.
Fair Practice (finance): (from investopedia/FINRA): In a broad view, the Rules of Fair Practice cover the fair dealing, duty of loyalty, obligation of disclosure and other duties stockbrokers provide to their customers.
Fiduciary: (from dictionary.law.com) 1) n. from the Latin fiducia, meaning “trust,” a person (or a business like a bank or stock brokerage) who has the power and obligation to act for another (often called the beneficiary) under circumstances which require total trust, good faith and honesty. The most common is a trustee of a trust, but fiduciaries can include business advisers, attorneys, guardians, administrators of estates, real estate agents, bankers, stockbrokers, title companies or anyone who undertakes to assist someone who places complete confidence and trust in that person or company. Characteristically, the fiduciary has greater knowledge and expertise about the matters being handled. A fiduciary is held to a standard of conduct and trust above that of a stranger or of a casual business person. He/she/it must avoid “self-dealing” or “conflicts of interests” in which the potential benefit to the fiduciary is in conflict with what is best for the person who trusts him/her/it. For example, a stockbroker must consider the best investment for the client and not buy or sell on the basis of what brings him/her the highest commission. While a fiduciary and the beneficiary may join together in a business venture or a purchase of property, the best interest of the beneficiary must be primary, and absolute candor is required of the fiduciary. 2) adj. defining a situation or relationship in which a person is acting as a fiduciary for another.
See also: confidential relation fiduciary relationship trust
Fiduciary Duty: (from ABA handbook, Kutcher, Ch.1; p 4) Numerous fiduciary duties arise in everyday business contexts. The most common of these are:
- Duty of care;
- Duty of loyalty;
- Duty to account;
- Duty of confidentiality;
- Duty of full disclosure;
- Duty to act fairly;
- Duty of good faith and fair dealing.
Fiduciary Duty: (from Cornell law): A fiduciary duty is a legal duty to act solely in another party’s interests. Parties owing this duty are called fiduciaries. The individuals to whom they owe a duty are called principals. Fiduciaries may not profit from their relationship with their principals unless they have the principals’ express informed consent. They also have a duty to avoid any conflicts of interest between themselves and their principals or between their principals and the fiduciaries’ other clients. A fiduciary duty is the strictest duty of care recognized by the US legal system.
Examples of fiduciary relationships include those between a lawyer and her client, a guardian and her ward, and a director and her shareholders.
Fraud: (fromWikipedia): Fraud is commonly understood as dishonesty calculated for advantage. A person who is dishonest may be called a fraud. See also:
- In the broadest sense, a fraud is an intentional deception made for personal gain or to damage another individual. The specific legal definition varies by legal jurisdiction. Fraud is a crime, and is also a civil law violation. Many hoaxes are fraudulent, although those not made for personal gain are technically not frauds. Defrauding people of money is presumably the most common type of fraud, but there have also been many fraudulent “discoveries” in art, archaeology, and science.
Fraudulent Concealment: (from Cornell.edu) Under contract law, a plaintiff can recover from a defendant on the grounds of fraudulent concealment where the defendant (1) concealed or suppressed a material fact; (2) had knowledge of this material fact; (3) that this material fact was not within reasonably diligent attention, observation, and judgment of the plaintiff; (4) that the defendant suppressed or concealed this fact with the intention that the plaintiff be misled as to the true condition of the property; (5) that the plaintiff was reasonably so misled; and (6) that the plaintiff suffered damage as a result.
(See also: Concealment.)
Fraudulent Conveyance: (from the Freedictionary.com) A transfer of property that is made to swindle, hinder, or delay a creditor, or to put such property beyond his or her reach.
Grantor: (from thefreedictionary.com): An individual who conveys or transfers ownership of property. In real property law, an individual who sells land is known as the grantor.
More simply: The person giving away something they possess.
Grantee: (from Merriam Webster): One to whom a grant is made.
Simply: The person who receives the grant from the grantor.
Guardian: (from wvlegalservices.org): A guardian is a person who is responsible for your personal affairs. A guardian is appointed by a judge after he or she determines that you are incapacitated.
Informed Consent: (Definition from Nolo’s Plain-English Law Dictionary) An agreement to do something or to allow something to happen, made with complete knowledge of all relevant facts, such as the risks involved or any available alternatives.
For example, a patient may give informed consent to medical treatment only after the health care professional has disclosed all possible risks involved in accepting or rejecting the treatment. A health care provider or facility may be held responsible for an injury caused by an undisclosed risk.
In another context, a person accused of committing a crime cannot give up his constitutional rights — for example, to remain silent or to talk with an attorney — unless and until he has been informed of those rights, usually via the well-known Miranda warnings.
See also: Consent.
Inventory: (West’s Encyclopedia of American Law): An itemized list of property that contains a description of each specific article.
For example: Inventory of a company is the annual account of stock taken in the business, or the quantity of goods or materials in stock. The term is also used to describe a list made by the executor or administrator of the estate of a deceased individual.
See also: Accounting
Letter of Agreement: (from thelawdictionary.org): Goods, services, space, agreed-to prices, terms, and time are all particulars documented in what becomes a binding contract once the associated parties all sign it.
Simply: The contract between a lawyer and a client.
See also: Client.
Pre-nuptial: (from The People’s Law Dictionary): n. a written contract between two people who are about to marry, setting out the terms of possession of assets, treatment of future earnings, control of the property of each, and potential division if the marriage is later dissolved. These agreements are fairly common if either or both parties have substantial assets, children from a prior marriage, potential inheritances, high incomes, or have been “taken” by a prior spouse.
See also: Ante-nuptial.
Probate (law): (from Online Etymology Dictionary): probate (n.) “official proving of a will,” c. 1400, from Latin probatum “a thing proved,” neuter of probatus “tried, tested, proved,” past participle of probare “to try, test, prove” (see prove). probate (v.) 1560s, “to prove,” from probate (n.) or from Latin probatus, past participle of probare (probe).
The formal certificate given by a court that certifies that a will has been proven, validated and registered and which, from that point on, gives the executor the legal authority to execute the will.
Probate (finance): (from Investopedia): What is a ‘Probate’: A probate is the legal process in which a will is reviewed to determine whether it is valid and authentic. Probate also refers to the general administering of a deceased person’s will or the estate of a deceased person without a will. The court appoints either an executor named in the will (or an administrator if there is no will) to administer the process of collecting the assets of the deceased person, paying any liabilities remaining on the person’s estate and finally distributing the assets of the estate to beneficiaries named in the will or determined as such by the executor.
Probate Court: (from Investopedia): Probate court is a segment of the judicial system that’s primarily charged with handling such matters as wills, estates, conservatorships and guardianships, as well as the commitment of mentally ill persons to institutions designed to help them. When wills are contested, for example, the probate court is responsible for ruling on the authenticity of the document and the mental stability of the person who signed it. The court also decides who is to receive which portion of the decedent’s assets based on the instructions in the will or, barring that, other laws in place.
Proximate Cause: (from uslegal.com) It is the cause that directly produces an event. The event would not have occurred but for the cause. This is also referred to as direct cause, efficient cause, initial cause, first cause, legal cause, producing cause, primary cause or jural cause.
A proximate cause is one that is legally sufficient to result in liability. It is an act or omission that is considered in law to result in a consequence, so that liability can be imposed on the actor.
Proximate cause is used in tort law to link negligence to liability for an injury caused by an accident. The accident and injury must be shown to be the natural and probable result or consequence of the acts of negligence alleged by the attorneys to have been committed. The attorney for the plaintiff must prove that any negligence of which the defendant is accused proximately caused the accident and his or her injuries. A defense attorney must at the same time prove that any contributory negligence of the plaintiff proximately caused the accident and any injuries of which the plaintiff complains.
More Simply: The person, thing or event that caused damage.
Racket (crime): Simply: Creating a problem so you can bill to fix it.
Racket: (U.S. Department of Justice): Racketeering is the offering of a dishonest service to solve a problem that wouldn’t otherwise exist without the enterprise offering the service.
Racket (From Wickipedia): A service that is fraudulently offered to solve a problem, such as for a problem that does not actually exist, that will not be put into effect, or that would not otherwise exist if the racket did not exist.
Particularly, the potential problem may be caused by the same party that offers to solve it, although that fact may be concealed, with the specific intent to engender continual patronage for this party. The most common example of a racket is the “protection racket” the racket itself promised to protect the target business or person from dangerous individuals in the neighborhood, the racket then either collects their money or causes the damages to the business until the owner pays. Basically, the racket is the problem and solution all in one and is used as a method of extortion.
Conducting a racket is racketeering.
Racketeering as defined by the RICO act includes a list of 35 crimes. If convicted of racketeering, a person could serve up to 20 years and be fined up to $25,000.
Recovery: To restore the damaged person or party to the place where they would have been had the (offence/injury) not happened.
Self Dealing (law): (From Nolo): Taking part in a transaction or business deal that benefits oneself rather than a person or company to whom one owes a fiduciary duty.
Self-Dealing (law): (From Cornell law): Self-dealing is a violation of the duty of loyalty.
Self Dealing (finance): (From Investopedia): A situation in which a fiduciary acts in his own best interest in a transaction rather than in the best interest of his clients. A fiduciary is legally obligated to act in the best interest of his clients. If he breaches this obligation, the wronged party can sue the fiduciary for monetary damages.
Example: An example of self-dealing would be if a broker knowingly advised his clients to purchase products which would cause them harm, but would pay the broker a hefty commission.
Shakedown: (from Merriam Webster): The act of taking something (such as money) from someone by using threats or deception.
Shakedown: (From the Urban Dictionary): (n.) Another word for extortion/blackmail, or the obtaining of a good or service through means of force, threats/intimidation, or abuse of power.
Example: Shakedown by force, threats and intimidation:
The Mafia would usually give small business owners “the shakedown,” in which if the owner did not pay protection money (or “tribute“) to the Mafia Don, their store would mysteriously be firebombed by vandals (read: Mafia thugs) who presumably would have been deterred if the owner had opted to partake in the Mafia protection plan.
Example: Shakedown by abuse of power:
City councils are notorious for shakedowns by abuse of power. Suppose you bought a house for an inflated price of $50000, before property values started declining. The state wants to build a highway, and decides that your house is in the way. You don’t want to move, but they offer you $25000 to pack up and leave. If you don’t leave, the council will employ the eminent domain laws, which will simply “force” you to leave and “force” you to accept a measly compensation of $15000 (fair market value) for your property. While such practice is actually legal, it’s still a shakedown, because if you don’t agree to their initial unreasonable demands, you’re going to be even worse off as a consequence.
See also: Extortion; Blackmail.
Standing: (from Cornell law): Standing, or locus standi, is capacity of a party to bring suit in court. State laws define standing. At the heart of these statutes is the requirement that plaintiffs have sustained or will sustain direct injury or harm and that this harm is redressable.
Standing: (from uslegal.com): Standing is the ability of a party to bring a lawsuit in court based upon their stake in the outcome. A party seeking to demonstrate standing must be able to show the court sufficient connection to and harm from the law or action challenged. Otherwise, the court will rule that you “lack standing” to bring the suit and dismiss your case.
There are three constitutional requirements to prove standing:
- Injury: The plaintiff must have suffered or imminently will suffer injury. The injury must not be abstract and must be within the zone of interests meant to be regulated or protected under the statutory or constitutional guarantee in question.
- Causation: The injury must be reasonably connected to the defendant’s conduct.
- Redressability: A favorable court decision must be likely to redress the injury.
- A party may only assert his or her own rights and cannot raise the claims of a third party who is not before the court.
T&E: Abbreviation for “Trusts and Estates.”
Testator: (from Black’s Law Dictionary): One who makes or has made a testament or will; one who dies leaving a will. This term is borrowed from the civil law.
Trust: (from The People’s Law Dictionary): n. an entity created to hold assets for the benefit of certain persons or entities, with a trustee managing the trust (and often holding title on behalf of the trust).
Most trusts are founded by the persons (called trustors, settlors and/or donors) who execute a written declaration of trust which establishes the trust and spells out the terms and conditions upon which it will be conducted. The declaration also names the original trustee or trustees, successor trustees or means to choose future trustees. The assets of the trust are usually given to the trust by the creators, although assets may be added by others.
During the life of the trust, profits and, sometimes, a portion of the principal (called “corpus”) may be distributed to the beneficiaries, and at some time in the future (such as the death of the last trustor or settlor) the remaining assets will be distributed to beneficiaries. A trust may take the place of a will and avoid probate (management of an estate with court supervision) by providing for distribution of all assets originally owned by the trustors or settlors upon their death. There are numerous types of trusts, including “revocable trusts” created to handle the trustors’ assets (with the trustor acting as initial trustee), often called a “living trust” or “inter vivos trust” which only becomes irrevocable on the death of the first trustor; “irrevocable trust,” which cannot be changed at any time; “charitable remainder unitrust,” which provides for eventual guaranteed distribution of the corpus (assets) to charity, thus gaining a substantial tax benefit. There are also court-decreed “constructive” and “resulting” trusts over property held by someone for its owner. A “testamentary trust” can be created by a will to manage assets given to beneficiaries.
Trustee: (from Black’s Law Dictionary): The person appointed, or required by law, to execute a trust; one in whom an estate, interest, or power is vested, under an express or implied agreement to administer or exercise it for the benefit or to the use of another.
Ward: (from The People’s Law Dictionary): n. 1) a person (usually a minor) who has a guardian appointed by the court to care for and take responsibility for that person. A governmental agency may take temporary custody of a minor for his/her protection and care if the child is suffering from parental neglect or abuse, or has been in trouble with the law. Such a child is a “ward of the court” (if the custody is court-ordered) or a “ward of the state.” 2) a political division of a city, much like a council district.
Will: (from law.com) n. a written document which leaves the estate of the person who signed the will to named persons or entities (beneficiaries, legatees, divisees) including portions or percentages of the estate, specific gifts, creation of trusts for management and future distribution of all or a portion of the estate (a testamentary trust). A will usually names an executor (and possibly substitute executors) to manage the estate, states the authority and obligations of the executor in the management and distribution of the estate, sometimes gives funeral and/or burial instructions, nominates guardians of minor children and spells out other terms.
To be valid the will must be signed by the person who made it (testator), be dated (but an incorrect date will not invalidate the will) and witnessed by two people (except in Vermont which requires three). In some states the witnesses must be disinterested, or in some states, a gift to a witness is void, but the will is valid. A will totally in the handwriting of the testator, signed and dated (a “holographic will”) but without witnesses, is valid in many, but not all, states.
If the will (also called a Last Will and Testament) is still in force at the time of the death of the testator (will writer), and there is a substantial estate and/or real estate, then the will must be probated (approved by the court, managed and distributed by the executor under court supervision). If there is no executor named or the executor is dead or unable or unwilling to serve, an administrator (“with will annexed”) will be appointed by the court.
A written amendment or addition to a will is called a “codicil” and must be signed, dated and witnessed just as is a will, and must refer to the original will it amends. If there is no estate, including the situation in which the assets have all been placed in a trust, then the will need not be probated.