Common Terminology in Wills

At Surasky Law, we believe in empowering our clients to engage in thoughtful estate planning. An informed client can make informed choices about their legal needs and end up more satisfied with the process. To that end, we have created this sheet of terms used in the creation of last will and testaments. Please call our firm if you have questions about a will.

Last Will and Testament Glossary & Definitions

Your last will and testament will serve many purposes. You can decide who will inherit from you, who will raise your minor children, and who guides your estate through the probate process. Here are some of the most important terms to remember.

Estate

A person’s estate includes all the money and assets they own when they died. An estate can also include legal rights, such as a right to sue someone for wrongful death.

Testator

This is the person who is creating the will.

Beneficiary

A beneficiary receives an inheritance through the will. A testator leaves property and/or money to one or more beneficiaries.

Formalities

South Carolina requires that testators follow certain formalities when creating a will. It must be in writing and either signed by the testator or signed by someone else at the direction of the testator. Further, two witnesses must sign after watching the testator sign or after the testator acknowledges the will to them. A will that does not follow the formalities is usually invalid.

Intestate

A person dies “intestate” when they die without a valid will. This happens frequently. South Carolina has intestacy rules which will determine who inherits the deceased’s estate when there is no will.

Capacity

A testator needs capacity for their will to be valid. It is also called “testamentary capacity.” Capacity is the legal term for knowing what you are doing. A testator with capacity understands they are creating a will and knows what assets they own. They also understand who they are leaving the assets to. Someone with dementia might lack capacity.

Bequeath

This is a verb used in wills to signify you are leaving something to your beneficiary. For example: “I bequeath my dog, Lilo, to my sister, Evelyn.”

Bequest

A bequest is the provision in your will leaving property to a beneficiary.

Personal representative

The testator should name a person to serve in this role. The personal representative guides the estate through probate. They have important duties, such as collecting and safekeeping estate assets and paying off creditor claims.

Executor

This is the old term for personal representative. Some people still use executor and personal representative interchangeably.

Alternate personal representative

Your first choice might not be able to serve. For example, they could die before the testator. Or the person is sick or lives too far away. A safe bet is for a testator to name an alternate who can serve.

Heir

Under law, your heirs inherit from you if you don’t have a will. The most common heirs are a surviving spouse and children. Compare “heir” with “beneficiary.” Although heirs are almost always relatives, a testator can name anyone as a beneficiary to inherit from them.

Elective share

South Carolina law does not let a testator intentionally disinherit their spouse. Under section 62-2-201 of the South Carolina Code, a spouse is entitled to 1/3 of their deceased spouse’s estate. They can accept that much regardless of what the will says.

Pretermitted child

A testator can disinherit their children. However, if the child is born or adopted after a will is created, then they are treated as a pretermitted child. South Carolina Code § 62-2-302 says they are entitled to a share equal to what they would receive under the intestacy rules, with some exceptions.

Issue

This is a legal term used to describe direct descendants, including children and grandchildren. Adoptees are also included, so your adopted child is treated the same as your natural-born children.

Probate

This is the legal process for administering an estate. It is court-supervised and involves paying off debts the deceased owed and then distributing what is left to either beneficiaries (if there’s a will) or heirs (if there is no will). Probate often lasts up to a year. South Carolina has a simplified probate process.

Non-probate assets

Not everything you own goes through probate. Assets owned by a trust are non-probate assets. Other examples include life insurance or retirement accounts, as well as payable-on-death accounts.

Summary administration

This is a simplified probate for estates in South Carolina of a certain size. You should consult an attorney if you hope to use the summary administration process.

Ancillary probate

The deceased might have owned property in a different state, like a vacation home in Michigan. Ancillary probate needs to be opened in the state where the property is located.

Codicil

A codicil is an amendment to a will. The testator must follow the formalities when creating a codicil.

Revocation

A testator can revoke a valid will. They typically do this by creating a new will and including a statement to the effect that all prior wills are revoked. Under the law, a testator can also revoke a will by physical act, such as tearing it up or burning it. However, it’s always best to revoke a will with a codicil or with a subsequent will.

Testamentary trust

A testator might use their will to create a trust. Estate assets are then poured into the trust and administered by the trustee.

“Pour over” will

A testator uses a pour over will to create a testamentary trust.

Guardian

A testator with minor children can name a guardian in their will to care for them after the testator’s death. Typically, guardians are only necessary if both parents are dead.

Residuary estate

Once specific bequests are made, all remaining assets are part of the residuary. You can name one or more residuary beneficiaries to inherit the residuary estate.

Need a Will? Call Surasky Law Firm

Anyone looking to create an estate plan should work closely with a lawyer to create an airtight document that will withstand judicial scrutiny. We have created hundreds of wills, and we can advise you about whether you need other estate planning documents, like a living trust. Call our firm to schedule a time to meet with our lawyer.