Get Familiar with Estate Planning Terms

Get Familiar with Estate Planning Terms

Below are some common terms used in Estate Planning in a Question-and-Answer format as adapted from USA Today, 2018:

Q: What is a will?
A: Technically, a will is called a “Last Will and Testament,” a document signed with certain required formalities designed to assure the integrity of the disposition process, declare the heirs of the estate and name the persons who will manage the disposition process. A will is just one part of the estate planning process. It is important to note that the state laws governing estates vary widely.

Q: What is testamentary capacity?
A: Testamentary capacity means having sufficient capacity to execute a will. Generally, all adults are presumed to have that capacity, and someone challenging the will has the burden of proof to show that the person lacked sufficient capacity. The standard for testaments capacity is relatively low. For example, in an early court decision, it was noted: "(a) man may believe himself to be the supreme ruler of the universe and nevertheless make a perfectly sensible disposition of his property, and the courts will sustain it when it appears that his mania did not dictate its provisions."

Q: What does it mean to die intestate?
A: Dying intestate means that you passed away without having a valid will in place before your death.

Q: What are intestacy laws?
A: When you fail to indicate how you want your estate governed and disposition of assets to be handled, then state statutes and case law effectively make those decisions for you.

Q: Who administers the estate?
A: The decedent’s will generally names an executor or personal representative to handle the probate process. If the documents are silent, or the named parties are unable or unwilling to serve, state statutes will dictate the process for an appointment.

Q: What do people need to know about the various types of wills?
A: There are two worth noting: A holographic will is one that is self-written and fails to meet the statutory requirements of state law. In some states (Georgia, for example), the failure to meet all statutory formalities in executing the will makes it unenforceable. States that permit holographic wills vary on the conditions that must be meet. A nuncupative will is an oral will. Most state do not recognize such wills as enforceable, but in some states (North Carolina, for example) they may be enforceable if made proximate to the decedent’s death and other conditions are satisfied.

Q: What is a codicil?
A: A codicil is an amendment of an existing will. With the digitization of documents, it is generally easier to just redraft the will with the proposed changes, assuming the client is willing to go back to the original drafter of the prior will.

If you are interested in updating your will and estate planning documents or having those reviewed by an Estate Planning Attorney, please contact

Article Adapted from Preparing a Will, 2018.

Birmingham Estate Planning Attorney Richard Burton provides legal services in Estates, Wills & Trusts, Probate Administration, Guardianship and Conservatorship, Asset Protection Planning, Business Succession Planning, Federal & State Tax Planning, Charitable Giving & Private Foundations. Contact Richard at or call (205) 789-9894.