What is a Will?

What is a Will?

A simple definition of a will can be found in a paralegal textbook, Edward A. Nolfi's Basic Wills, Trusts, and Estates (Glencoe/McGraw-Hill 1995). Mr. Nolfi writes that: "A will is a formal letter to the probate court judge declaring what the maker wants after death." Let's look at each part of this intriguing definition.

Probate Court Judge

Why would someone want to write a letter to a probate court judge? Because a probate court judge (or equivalent) is the public official who has ultimate responsibility for the disposition of a decedent's estate. Although a personal representative known as an administrator, executor, executrix, or personal representative is usually appointed to act on a decedent's behalf, most of the personal representative's actions can be challenged in probate court. Thus, if a person wants to be as sure as possible that his or her nomination for personal representative is appointed, that his or her nomination for guardian of his or her minor children is appointed, and that his or her estate disposed of in a particular manner, the public official who ultimately needs to know about it is the probate court judge.

Letter

Who a person wants to nominate his or her personal representative, who a person wants to nominate as the guardian of his or her minor children, and how a person wants to have his or her estate disposed of, are all matters that may change over time. By putting those desires in a letter and retaining control over the letter until it is needed, a person can make changes until the letter is needed. When the letter is needed is after the person is dead. A letter is most appropriate for this communication, because a person cannot come back after he or she is dead to tell the probate court judge what he or she wants. The only way to convey such information is for the person, while alive and well, to make a permanent communication, a writing, like a letter.

Formal Letter

It is impractical for the letter to be a personal letter to a particular probate court judge, because who the probate court judge will be when the person dies will not be known for sure until after the person dies. Regardless of who is the probate judge, he or she does not need to know the contents of the letter until after the person's death.

Because it is a formal letter, a will has formalities. It should be personal in style, yet formal and precise. Such a letter indicates that it was made solemnly and not frivolously.

What the Maker Wants After Death

A will is an instrument, a formal legal writing, that a person makes primarily to declare the disposition of his or her property after death. In most states, an instrument must dispose of some property to be a will.

Copyright 2012 LexisNexis, a division of Reed Elsevier Inc.