Wills & Testaments, Probate

A will or testament is a legal declaration by which a person, the testator, names one or more persons to manage his or her estate and provides for the distribution of his property at death. For the devolution of property not disposed of by will, see inheritance and intestacy below.

Though it has at times been thought that a “will” was historically limited to real property while “testament” applies only to dispositions of personal property (thus giving rise to the popular title of the document as “Last Will and Testament”), the historical records show that the terms have been used interchangeably. Thus, the word “will” validly applies to both personal and real property. A will may also create a testamentary trust that is effective only after the death of the testator.

Inheritance is the practice of passing on property, titles, debts, rights and obligations upon the death of an individual. It has long played an important role in human societies. The rules of inheritance differ between societies and have changed over time.

Intestacy is the condition of the estate of a person who dies owning property greater than the sum of their enforceable debts and funeral expenses without having made a valid will or other binding declaration. Alternatively, this may also apply where a will or declaration has been made, but only applies to part of the estate, the remaining estate forms the “Intestate Estate.”

Intestacy law, also referred to as “the law of descent and distribution” or “intestate succession statutes”, refers to the body of law that determines who is entitled to the property from the estate under the rules of inheritance.

Probate is a legal document. Receipt of probate is the first step in the legal process of administering the estate of a deceased person, resolving all claims and distributing the deceased person’s property under a will. A probate court (surrogate court) decides the legal validity of a testator’s will and grants its approval by granting probate to the executor. The probated will becomes a legal document that may be enforced by the executor in the law-courts if necessary. A probate also officially appoints the executor (or personal representative), generally named in the will, as having legal power to dispose of the testator’s assets in the manner specified in the testator’s will.