Whether you’re a first-time executor or have served as the administrator of an estate before, interpreting a will can get tricky.
It is true that the will is an important document—and, as we have written about before, can determine whether an individual passes away testate or intestate.
What is not true, however, is that the will always needs to be complicated. The idea that wills are always complex and hard to read is a misconception.
The contents of a will are often always the same — no matter how confusing the testator’s estate might be.
Before we get into reading a will, let’s make sure we’re all set on the basics.
The Definition of a Will
Although wills may vary in length and specific language, the document itself must fit into the legal definition of what a will must be. The most commonly accepted definition of a will is as follows:
A will is a legally enforceable declaration by the testator regarding the instructions of the distribution of the testator’s assets after his or her death.
Let’s break that down:
- Legally enforceable: To be legally enforceable, a will must be considered valid. Each state’s last will and testament laws will determine whether the document is legally valid or not.
- By the testator: The will must be created by the individual prior to their death. This individual, called the testator, must have been of sound mind (possessed mental capacity) when they created the document.
- Instruction of the distribution: The document must offer guidance on how to distribute the testator’s assets.
- After his or her death: Although there are such documents as “living wills,” it is a general rule that wills do not take effect until the testator’s death.
Key Contents of a Will
A will doesn’t need to be lengthy. In fact, there are really only six key components of a will:
- Personal Identification
- Testamentary Intent
- Assets and Beneficiaries
- Appointment of Executor
- Signatures
- Notary Signatures
Let’s look at each component individually.
Personal Identification
The testator must identify themselves by full legal name. The testator will usually use this section to also identify where they reside at the time of the document’s creation.
Testamentary Intent
The testator must explain that the document is intended to serve as the individual’s last will and testament. The testator will generally revoke any prior wills that they might have drafted.
Assets and Beneficiaries
The testator will often use this section to list their assets—whether individually or collectively—and instruct the distribution of the assets. The testator must list receiving beneficiaries or heirs by full legal name.
Appointment of Executor
The testator must appoint an executor or executrix to oversee estate administration. The testator can also appoint multiple executors (called co-executors) to lead estate administration.
Atticus Advice: Don’t take choosing an executor lightly; they have a lot of responsibility and power. For more on choosing an executor, read: How to Choose the Executor of Your Estate
Signatures
Many states require that the will is signed by the testator and at least two witnesses to be a valid document. There are exceptions to this rule, there are many types of wills — but it is always a good rule of thumb to include witnesses in the signing of the will.
Notary Signatures
Although not required in all states, obtaining a notary signature for the will may prove to be beneficial when later trying to prove the will’s validity. Notarizing a will can mean that the witnesses do not need to appear in probate court if the document’s validity is ever called into question.
Okay. Basics are covered.
Now let’s get to reading a will.
Example of a Valid Will
Big news. We were fortunate enough to obtain the last will and testament of Bruce Wayne, the notable playboy and millionaire from Gotham.
Brief side note—we’ve never seen Bruce and Batman in the same room, which makes us wonder…oh well, we’ll leave that up to you to decide.
Let’s take a look at Bruce’s last will and testament:
LAST WILL AND TESTAMENT OF BRUCE WAYNE
I, BRUCE WAYNE, of Gotham City, being of sound mind and not being under duress or undue influence, do hereby make, publish, and declare this to be my Last Will and Testament, and revoke all Wills and Codicils heretofore made by me.
I
I direct my executor to pay from my estate all debts and expenses of my last illness and funeral and the expenses of the administration of my estate.
II
I direct my executor to pay from my estate all inheritance, estate, transfer, and succession taxes which become payable by reason of my death and authorize the executor to contest or compromise any claims for said taxes. I direct that all taxes shall be paid without apportionment thereof and with no withholding or collecting any part from any beneficiary or heir under my Will. I direct that no life insurance of mine which may be subject to said tax be collected by any part from any beneficiary or heir under my Will, it being my intention that all such taxes shall be paid from my estate as an administration expense.
III
I declare that I am unmarried. I have no children or lineal descendants.
IV
I give, devise, and bequeath to my butler, ALFRED PENNYWORTH, if he survives me the following:
- Wayne Manor Estate, including the house and all land associated therewith.
- My six automobiles
- $250,000.00 in cash
V
I give, devise, and bequeath all of the rest, residue, and remainder of my estate to my colleague Dick Grayson.
Should said colleague predecease me, then I leave all of my said residuary estate to his heirs, to be divided among them equally per capita and not per stirpes.
VI
I nominate and appoint James Gordon, Gotham City Police Commissioner, as personal representative and executor of my Last Will and Testament. My executor shall have full power without requirement of any order of court to continue, operate, or discontinue any business, partnership, or other contract or transaction in which I may be interested at the time of my death; to borrow money as occasion may require; to compromise, settle, or waive any claim due to or by my estate, and to sell for cash or on credit at public or private sale, assign, transfer, convey, mortgage, or lease any personal or real property belonging to by estate, without license or petition or order by the court, and without any issuance of citation or notice and without reporting to the courts or securing from the courts any order authorizing or confirming any such sale, or other disposition of personal or real property.
In WITNESS WHEREOF I have hereunto set my hand to this, my Last Will and Testament, this 13th day of April, 2022.
Bruce Wayne Signature
The foregoing instrument was, on the date it bears, signed, published, and declared by BRUCE WAYNE to be his Last Will and Testament in our presence who at his request and in his presence and in the presence of each other, all being present at the same time have hereunto subscribed our names as witnesses.
Jack Napier Signature
Harvey Dent Signature
City of Gotham
On this 13th day of April, 2022, before me, a notary public for the City of Gotham, personally appeared BRUCE WAYNE, known to me to be the person whose name is subscribed to in the foregoing, and acknowledged to me that he executed the same as his free and voluntary act, for the uses and purposes therein set forth.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my notarial seal the day and the year this certificate first above written.
Cassandra Cain Signature
Cassandra Cain
Notary Public for the City of Gotham
---
Notice that Bruce’s will contains each of the six components that we mentioned earlier. The document clearly contains personal identification, testamentary intent, assets and beneficiaries, the appointment of the executor, signatures of the testator and witnesses, and the notary signature.
Speaking of which…
Section I: Personal Identification
This is the introductory paragraph of the will. In this paragraph, the language identifies the testator by name and confirms that any previous wills are revoked. The language also confirms that any previous codicils are revoked.
A codicil is a legal document that lists any additions or modifications to the last will and testament.
Although a codicil is legally enforceable, it’s crucial to note that creating a codicil does not equate to creating a new will.
In short, a codicil amends a will but does not replace it.
Atticus Advice: An executor must be aware of any will codicils to ensure that the most recent updates are included when completing the testator’s last wishes. Legal challenges to codicils can occur if the timing and state of the testator’s mind are in question at the time of the codicil amendment. An executor should seek legal counsel if any disputes arise from any additions or modifications to the last will and testament.
The opening paragraph also usually affirms that the testator is of sound mind and has sufficient mental capacity to create a will. Notice Bruce’s mention of this when he writes that he was of “sound mind” and not under “duress” or “undue influence.”
Section II: Tax Stipulations
This section, although not required, is an important part of the testator’s intent. Bruce stipulates in this section that taxes associated with the estate and distributions must be paid from the estate, not by the receiving beneficiaries.
The individual parties receiving assets—Alfred Pennyworth and Dick Grayson—do not pay the taxes on the property. The taxes are paid from the estate, as intended by Bruce Wayne.
Section III: Assets & Beneficiaries
This ties into the second key component of all wills: the list of assets and beneficiaries. This section confirms that Bruce Wayne is unmarried and has no children or grandchildren. It’s an important clarification before Bruce outlines the assets that he is distributing from his estate.
Section IV: Specific Bequests
This section also ties back to the list of assets and beneficiaries. In this section, Bruce is making a specific bequest to Alfred Pennyworth.
Specific bequests often include the deceased’s house, land, or other items of tangible personal property. In this case, Bruce is bequesting his house, land, automobiles, and a significant amount of cash to Alfred.
Being a butler doesn’t seem like a bad gig at all! We wouldn’t mind working for Bruce Wayne.
Section V: Assets Continued
This is the third section that ties back to the list of assets of beneficiaries. In this section, Bruce disposes of the residuary estate—all that is left after all the claims against the estate, administrative expenses, taxes, and specific bequests have been deducted.
Dick Grayson, Bruce’s colleague, is the recipient of the residuary estate. If Dick predeceases Bruce, then Dick’s heirs will receive the residuary estate.
The language in this section brings up another important question: what is per capita and per stirpes, and why does the distinction matter?
Per capita literally means “by the head” in Latin and has come to mean “per person.” If the distribution is per capita among four children equally and one of those children passes away prior to distribution, the distribution then goes to the remaining three children equally.
Per stirpes means “by the branch” in Latin. It signifies that distribution will continue down the family tree. If the distribution is per stirpes among four children and one of those children passes away prior to distribution, the distribution for that child will then go to that child’s own heirs as defined by next of kin.
Whether distributions are made per capita or per stirpes can have major consequences when planning for the estate settlement process.
Read more: Per Capita vs. Per Stirpes
Section VI: Appointment of the Executor
This section ties into the third component of all wills—the appointment of the executor. In this section, Bruce names his trusted friend James Gordon as the executor of the Wayne estate.
Commissioner Gordon is in charge of all Gotham City Police, so it’s a fair bet that he’s a man who can be trusted. It appears that Bruce’s estate will be in good hands upon Bruce’s passing.
More context: How Executors Succeed (and avoid being a flop)
Signatures
This section includes Bruce’s signature and the signatures of two witnesses. This is an important step, as having witnesses will help prevent the will’s validity from ever being contested.
Notary Signature
The final component of the document is the notary’s signature. It’s not required in many states, but obtaining a notary signature will ensure that the will is validated in court. The notary’s signature also ensures that the witnesses do not need to appear in court if the document’s validity is ever questioned.
Note: Although we’ve covered a broad summary in how to read a will, it’s important that we make a careful distinction here: reading a will is not the same thing as the reading of the will.
Wait, what? Let’s say that again: reading a will is not the same thing as the reading of the will.
When is the Reading of the Will?
Hollywood movies often depict dramatic moments where the family of the deceased gathers in the living room to listen as a lawyer reads aloud the contents of the will.
These intense moments, often called “will readings” or the “reading of the will,” don’t exist.
To put it delicately, those moments are about as real as that will we just read from Bruce Wayne.
Perhaps some families have special moments where everyone gathers around a conference table or in a living room to hear a lawyer reveal the will’s secrets. But outside of Hollywood, those moments just don’t really happen.
Will readings aren’t a requirement. There doesn’t need to be a family gathering for the deceased’s will to be revealed.
If you’re the executor and want to host a will reading, by all means—you’re certainly within your rights to do so. Invite Morgan Freeman to act as your lawyer and read the will out loud, and pop some popcorn for your guests. We would certainly love to attend if you have enough seats in your living room.
What about Will Contests?
Like the reading of the will, will contests are also often depicted in Hollywood movies. Unlike will readings, however, will contests are very real.
We won’t get into all the nuances of will contests here, but in order to provide a brief summary, we will give you a definition:
A will contest is a legal proceeding that occurs in the probate process when interested parties file a claim with the probate court to dispute the validity of the document.
Will contests can stem from a variety of conflicts, but most will contests occur if the following is true:
- Capacity: The testator lacked sufficient mental capacity to create the will.
- Undue Influence: The testator was under a state of duress or undue influence.
- Forgery: The will is a forged document.
Although there might be a valid reason for a will contest to occur, will contests are often avoidable if the executor maintains careful records regarding the creation of the will.
Atticus Advice: The executor must maintain careful records regarding the will’s origins to protect the estate from a will contest. As the executor of the estate, it’s important that you know the answers to the following questions:
- When did the creator draft the will?
- When did the creator sign the will?
- Who were the witnesses to the will?
- Who notarized the will?
- Who are the beneficiaries named in the will?
- Who are the interested parties that could contest the will?
What are the other Types of Wills?
We’ve only outlined one type of will in this guide—an attested will—which is by far the most common type of will that an executor will encounter in the administration of an estate.
We should note, however, that attested wills are not the only type of will out there. Wills can come in many shapes and sizes, and we would be remiss if we did not mention two other types of wills that an executor might encounter.
- Holographic Wills
A holographic will is written by the testator but not witnessed. What is interesting about this type of document is that the will must be completely handwritten by the testator. It cannot be typed on paper or created digitally, as it is the testator’s handwriting that proves the validity of the document.
- Nuncupative (Oral) Wills
A nuncupative—or oral—will is spoken by the testator in the presence of witnesses. This will is often also referred to as a “deathbed will” because the testator must make it in his last illness or under circumstances where he cannot make any written will.
What if a Will is Hard to Read?
If you find yourself reading through a complex will, you’re likely going to find yourself asking the following questions:
- What is the testator’s intent?
- Is the distribution plan legal?
- Do any parts of the will conflict?
If you’re asking these questions and still find yourself struggling to get the answers you want, don’t worry. Legal documents can be difficult to interpret, but don’t feel like you have to fully understand the will or codicil on your own.
If you find yourself stuck in understanding the will, you have a couple of options at your disposal:
Consult with a probate attorney
If a will is hard to read or you’re unsure about the particular meaning of a section or sentence within the will, consider reaching out to a probate attorney.
There’s no shame in needing to consult a probate attorney regarding the interpretation of the will. Wills and codicils can be confusing and vague, so a probate lawyer may be able to give you guidance on how to understand certain aspects of the documents.
As the executor of the estate, you might be wondering—will I have to pay the probate attorney fees out of my own pocket?
The answer, thankfully, is no. You won’t be liable to pay the probate attorney fees out of your own pocket, as legal consultations are expenses that executors can pay from the estate.
Consult with the probate court
Wills are not perfect, and the language within the document can often conflict with itself. If you find conflicting language in the will, you may need to go to the probate court to gain a ruling on how to interpret the will.
The probate court might be intimidating, but the court’s role in this process is to interpret the will in a way that both upholds the law and maintains the testator’s original intentions. You should use the probate court as a resource if you ever believe that the will contradicts itself.
Why is it so important to consult with a probate attorney or the probate court when you are stuck in interpreting the will? Well, that brings us to a common question that most executors ask when baffled by the will:
Can I just make my best guess?
If you’re confused by the will, it might be tempting to just take your best guess and make a judgment call with what you think the testator intended.
But that’s a bad idea.
If you interpret the will incorrectly, you may be liable if you take any action that contradicts the testator’s original intent. If the beneficiaries or heirs of the estate believe that you failed to exercise the proper duties of an executor, you could end up facing a civil lawsuit and will likely find yourself in the middle of a legal mess.
It’s always better to err on the side of caution. Even if you have a reasonable guess as to what the testator intended, consider consulting with a probate attorney or bringing the matter to the probate court before you jump to any conclusions.
Correctly reading the last will and testament is just the beginning
While we’ve just tackled a pretty large range of topics involving reading last will and testaments, aiding executors, and navigating probate as a whole, these steps are often just the beginning of the larger probate & estate settlement process. Once you're ready to keep diving into the next phases, be sure to check out some our other probate resources & articles.
And for those of you who are named as the executor of an estate but aren't yet sure whether the deceased even left a will, you’ll need to complete a will search before taking any further steps.
If so, let's get you started with figuring out how and where to look for a deceased’s will.
