“Do you want to be the executor of your own estate?”
“I hope so!”
Yes, I inadvertently asked this question of a client in my first month in the trust business. I meant to ask who he wanted to appoint as executor of his estate but the words came out garbled. Fortunately, I didn’t ask him if he wanted to be the executioner of his own estate. Since many unusual words are employed in discussions about wills and estates, I thought a brief refresher might be useful for you and certainly useful to me.
Let’s start with your last will and testament. Contrary to popular belief, having an attorney draw up your will does not advance the date of your death. Because you create the provisions of this testament, which direct how your assets are to be distributed upon your demise, you are the testator, that is, the person who made the will. (This word doesn’t rhyme with ‘potato.’ It is pronounced tess-tay-tor). Your last will and testament appoints the executor of your estate who is charged with carrying out the testamentary provisions of your will. Make sense?
While it sounds odd, when you execute your will, you don’t kill it, you sign it, which activates the document. Upon your demise, the provisions will take effect. Generally, in the financial business, experienced FAs don’t use the word ‘death’ when referring to ‘death.’ Who wants to suggest to a client that such a calamity might befall them? Yet as an FA, you want to get a sense of who is going to inherit your client’s assets.
Hence, classic expressions such as “in the unlikely event you should pass away,” or “should the unhappy event of your demise occur, have you given thought to who might inherit your assets?” Perhaps the most classic formulation used is, “Heaven forbid, Mr. Jones, that you should be hit by a bus tomorrow. But if you were, how would you want your assets distributed?” This phrase is used so often a casual observer could easily conclude that the wealthy are hit by buses in a far greater percentage than the poor.
However, despite trepidations, most people eventually have an attorney draw up a will. Then comes the big day when you execute your will. Typically, you do this in your attorney’s conference room in the presence of a notary public and two or more neutral witnesses—that is people who don’t stand to gain or lose financially under your will. This is a ceremony of great solemnity so you must wear a black gown like you wear during a graduation ceremony. (OK, you don’t).
Your attorney will usually ask if you are Mr. John Smith or whomever and you will say, ‘yes,’ unless you are not and have accidentally walked into the wrong office to deliver a package. You then produce your passport or other legal proof of your identity which the attorney and the witnesses examine. Your attorney asks if you understand that you are signing your last will and testament. The correct answer is ‘yes.’
The witnesses, having heard you state that you are Mr. John Smith and this is your last will and testament, will then peer at you to witness your signing of the document. Usually, you sign three or four copies. Most states provide for “self-proving wills.” This means when you pass away, the original witnesses don’t have to appear before the court and swear they witnessed you signing your will on such and such a date. This is the case in Florida where I witnessed the signing of many wills as a trust officer.
To be “self-proving,” you, the testator, and the witnesses sign on the signature page of the will. Everyone then signs every single page of every original copy of the document. This prevents an unscrupulous relative from replacing a page in the will. Witnesses often sign a separate document swearing they witnessed you sign your will. After everyone signs and signs to the point of writer’s cramp, all original copies are notarized.
These copies are then stashed in various safe deposit boxes. If you have named a bank as executor, they place your will in their “will vault” which really is a vault. Reason? If an original and properly executed copy of your will cannot be produced in the unlikely event of your demise from being hit by a bus, your executor cannot prove the validity of your will in court.
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Contributing Writer: Subject Matter Expert Charles McCain