Category Archives: Will

Definitions of various terminology used in the Will



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Guardian in a will

Person who has been named in a will or appointed by a judge to take care of minor children or a special-needs adult. Naming one person as the executor and another as the guardian can make sense in some cases if the guardian is not well equipped to handle financial matters. The court is not required to honor the guardian named in a will, but usually does unless there is evidence that the individual is incapable of handling the role. (Read Special Trusts For Special Needs for more information on how to ensure your loved ones with special needs are taken care of.)

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Probate of a will

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Probate is the process used to make an orderly distribution of property from a decedent to a group of beneficiaries. The court essentially supervises the transfer of property, filing of claims against the estate by creditors and the publication of a last will and testament.

Assets subject to probate include the following:

  • “Singly”, or individually, owned assets.
  • Property held by tenancy in common.
  • Assets where the beneficiary is designated as the “estate of the insured”.

Assets not subject to probate include the following:

  • Property conveyed by deeds of title.
  • Property held by joint tenancy with rights of survivorship (JTWROS).
  • Government savings bonds.
  • Trusts.
  • Payable-on-death accounts.
  • Annuities.
  • Retirement accounts.

Ancillary Probate

This is a second probate process for real estate located in a state other than that of the decedent’s state of residence. This is necessary because a will can only dispose of the decedent’s personal property located in the state of the decedent’s residence.


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The provisions relating to the grant of probate of will are not affected in case of the will deposited by the testator with the Registrar. When an application for grant of probate is made, the Registrar shall produce the will to the Court.

Also See the  Checklist of a willPrecautions in Drafting a willRevocation of a willHow to write a willWhat is a will



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Who is a Testator

One who has died leaving a testament or will. The testator must satisfy requirements as defined under state law. For instance, a state may require that the testator be considered to be of sound mind when the will is made, must not be an infant, must not have been under duress when the will was made and must not have been in a state where he or she was deprived of his or her free will when the will was made.

The declaration should be relating to the testator’s property and the testator should intend to dispose off his property after his death. If the declaration is not to take effect or if the testator wanted to carry out the intention made in the declaration immediately, the instrument will not be a will, the will should be revocable during the lifetime of the testator. If the instrument is intended to come into effect with immediate effect and to be final and irrevocable, it will not be a will. The tests to ascertain whether the instrument is a will or not are (i) whether it makes a disposition of the testator’s property? and (ii) whether the disposition made by the instrument is intended to take effect immediately on execution or after the death of the testator?

Also See the  Checklist of a willPrecautions in Drafting a willRevocation of a will, How to write a will, What is a will