When you create your estate plan, it may include multiple documents, such as a will, power of attorney documents, a personal directive, asset lists, and more.
But it’s important to understand that there may be different words used to refer to someone who makes a will versus someone who makes a power of attorney, even if they are the same person.
In estate planning, the person who writes a last will and testament is called a testator.
In this article, we’ll explore the role of a testator in estate planning, including who can make a will and become a testator, the difference between different roles in estate planning, and what happens when a testator passes away.
Who is considered a testator in a will?
A testator is someone who makes a valid last will and testament, which is a legal document that states their wishes about their assets and property after their death.
In order to be considered a testator, a person must:
- Be of sound mind; able to understand their own will, estate, and the claims of those who would expect to benefit under their will
- Be over the age of majority in their province some text
- They may be exempted from this requirement if they’re married, have children or are a member of the armed forces
- Make their will of their own volition, without outside pressure or exploitation
- Create and execute their will based on the legal requirements of their province or territory
Difference Between Testator and Testatrix
Historically, if the person who created the will was male, they were called a testator, and if they were female, they were called a testatrix.
Now, the term testator is used to describe anyone who creates a legal will, regardless of their gender identity.
The Role of a Testator in Estate Planning
When creating your will and estate plan, it’s important to be thorough and as accurate as possible to your wishes and your current situation. If your situation changes, you should update your documents to reflect these changes. With Willful, you can always make unlimited updates for free.
Here are some of the important decisions you will need to consider as you create your will:
1. Choose the type of will you’d like to make
A lawyer-drafted will could cost you thousands of dollars, especially when you factor in changes down the road. Which is why it’s important to consider which type of will is best for your budget and situation. Types of wills include will kits, holographic wills, online will platforms, and lawyer-drafted wills.
2. Pick your executor
Appoint an executor to manage your estate and execute the wishes outlined in your will. If you don’t appoint an executor, the courts will choose someone to act as your estate administrator instead, and they may not be someone you would’ve wanted to take on this important responsibility.
3. Select your beneficiaries
Your beneficiaries are anyone you name in your will to receive your assets after you pass away. Like an executor, choosing your beneficiaries and how you want your assets distributed is important because if you don’t, the intestate law dictates what happens.
4. Designate a guardian for your children and pets
If you have dependent children or pets, you’ll want to appoint a guardian or pet guardian to assume legal, moral and financial responsibility for them if you and your spouse or partner pass away.
Having someone you trust in this role, rather than someone appointed by the government, will make all the difference for your children.
5. List any funeral and burial wishes
Outline any funeral wishes you have in your will, such as traditional burial or cremation, so your executor has a blueprint they can follow for your end-of-life services.
If you don’t document your final wishes here, your executor or loved ones may be forced to make those decisions instead, which can be very difficult if they are also mourning your passing.
6. Print, sign, and witness your will
Execute your will based on the requirements of your province or territory. In most cases, this means you must sign your will in wet ink in front of two witnesses, who must also sign your will.
At this time, the only exception to this law is British Columbia, where testators are allowed to sign, witness, and store their will online.
Common misconceptions about testators
Learn more about the grounds for contesting a will →
Other important things to clarify about testators
Who are the heirs of the testator?
A testator’s heirs are the people who inherit the testator’s property and assets after their death, called “beneficiaries” in the will.
What is the opposite meaning of testator?
Testators create wills to distribute their estates and document their last wishes. Beneficiaries receive assets based on the wishes in the will.
So testators and beneficiaries have opposite roles in estate planning; one gives assets, the other receives them.
What is a testator executor?
Testators and executors have completely separate roles in estate planning. A testator appoints an executor in their will. The executor can only begin their role once the testator has passed away.
Legal Processes Following the Death of a Testator
Here are the steps in the legal process after a testator passes away.
- The testator’s death is confirmed with a death certificate or a statement of death.
- The testator’s loved ones, such as their family, partner, and friends are notified of their passing.
- The deceased’s will is located by their executor or family.
- The executor secures the deceased’s property and assets to begin the estate administration process.
- Based on the final wishes outlined in the will, the executor plans and facilitates the testator’s funeral.
- Next, the executor begins their executor responsibilities of managing, distributing, and settling the estate.
What is probate, and when is it necessary?
Some third parties, such as banks, may require a grant of probate before letting an executor access a deceased person’s accounts or property. An executor may also need one if they want to sell the testator’s home.
During the probate process, the courts formally confirm that someone has passed away and move forward with the estate settlement process with a grant of probate or administration.
In this case, where the deceased had a will, the process would confirm that the deceased was the author of the will and that the will is valid. Then, the courts would issue the executor a grant of probate, which would give them the power to prove the executor’s authority to administer the testator’s estate.
If there was no will, someone would need to probate court to confirm someone has passed away and request a grant of administration, which would give them the authority to manage the deceased’s assets.
Who inherits if a beneficiary dies before the testator?
If a beneficiary named in a testator’s will passes away before the testator, there are a few things that could happen.
- If the testator named a contingent beneficiary for what the deceased beneficiary was set to inherit, then the contingent beneficiary would receive the inheritance instead.
- If the beneficiary was a descendant of the testator and the testator arranged for a per stirpes distribution of their assets, then the share of a beneficiary who dies before the testator would go to the deceased beneficiary’s own surviving descendants.
- If the testator didn’t set up a contingent beneficiary or a per stirpes division of assets, then the beneficiary’s inheritance would be distributed based on Canadian intestate laws.
Common Challenges and How to Overcome Them
Make sure your will is valid
The most important thing when making your will is to make sure you execute it based on the legal requirements of your province.
Your will is not legally binding until you’ve followed all the requirements for signing and witnessing. You must ensure your will is signed by yourself, the testator, and two witnesses.
At Willful, we include full detailed instructions so you can make sure you don’t miss anything along the way.
Talk to your loved ones about your wishes
To avoid confusion and will challenges, it’s a good idea to discuss your wishes with your loved ones and resolve beneficiary disputes ahead of time.
Not only will it help them get ready for the future, but it may help them with preparing a will of their own—which is good!
Tell your executor where you stored your will
Keeping your will in a safe place is one of the last steps to successfully completing it. But it’s not the final step! You should always let your executor know where your will is, so they can help settle your estate when the time comes.
Make your legal will and get free unlimited updates
With Willful, you can easily make your legal will online from the comfort of your own home. Not only are Willful wills legal in every province in Canada, but by making your will with Willful, you also get free unlimited updates for life!
This means you can log in anytime, anywhere, and make updates to your will without any additional fees. Compared to using a lawyer, this can save you thousands.
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