Deciphering the Legal Mumbo Jumbo in Your Will
Words are powerful things, especially in a will. They can mean the difference between your assets going to the people you love or leaving them with a legal mess to sort out. But if these words are so important why are they so confusing?
Most people are at least a little intimidated when confronted with the legal mumbo jumbo that might appear in your will or as part of the legal process after someone has died. It is easy to suspect that things are deliberately designed to be difficult to understand for those outside the legal profession, perhaps to legitimise the high fees solicitors charge.
A more charitable explanation is that, like most English law, it is the product of hundreds of years of legislation which often includes words no longer in common use as well as the persistence of Latin in the legal vocabulary. This certain applies in the case of the humble will, much of which involves laws from the 1830s. Reading or drawing up a will may be the only time in your life when you are confronted such legal terminology. Here’s some help.
Some legal terms are familiar. Most people know that executors are appointed by the deceased to “execute” the instructions in the will. But perhaps fewer know that the person who creates a will is the testator (as it is their “testament”), a female testator is a testatrix and a female executor is an executrix, which all sounds a bit kinky although these terms, like many that define gender, are slowly falling into disuse.
Executors take the will through probate (from the Latin “to prove”) during which they must “prove” to the court that the will is valid and that any later “codicils” (Latin: “changes”) were legally made. The executors also need to show that the estate (all of the testator’s possessions) has been located and valued, any debts paid along with any inheritance tax owed (also referred to as IHT or, rather more grimly, “death duties”).
After receiving a grant of probate the executors can go ahead with estate administration. The first step involves the distribution of bequests (an old word for gifts) to beneficiaries (those who benefit from the will). It sounds easy enough but there is a seemingly endless list of legal terms for “gift”. It could be a legacy (an item or cash, but not real estate), often a chattel (a moveable piece of personal property); or a specific legacy (“I leave my emerald engagement ring to my daughter, Catherine.”) or a pecuniary gift (money!) or, better yet, a devise (a gift of real estate). The list goes on.
After all the bequests are distributed what remains is called the residual estate. This “residual” may go entirely to one person (a spouse or a partner) or is distributed amongst several beneficiaries. The method of distribution matters. Sometimes the testator will simply assign a certain percentage to specific individuals: 75% to Agnes and 25% to Bob.
In most families in the UK the residual estate is divided per stirpes (Latin: roughly “by roots”, rhymes with herpes) by which each branch of a family gets an equal share. A less frequently used method is per capita (Latin: “by head’). The difference matters a lot in cases where the beneficiaries span more than one generation. For example, if a testator has two children, a son and a daughter, both of whom are alive at the time of the testator’s death, each receives 1/2 of the estate regardless of whether it is distributed per stirpes or per capita. Simple enough. But what if both children die before the testator? The son is survived by one child and the daughter by two. Under per stirpes, the son’s child would receive the son’s full share of the estate (1/2) and the daughter’s two children would divide her share (1/4 each). Under per capita, all three children from that generation would receive an equal share (1/3). Different ways to divide the same pie.
Confused? Don’t be. Using e.Will can help demystify the will writing process using easy-to-understand instructions and simple language to cut a clear path through the legal jargon to get you where you want to go.
This article has been sponsored by the good people at eWill.io (The world’s most sophisticated digital will).
*Note: We are not lawyers or a law firm and we do not provide legal, business or tax advice.