There’s a lot that goes into end-of-life planning, from determining your memorial arrangements and organizing your assets to getting your documents in order. Writing or updating your will is a big part of that planning process, but sometimes it can be confusing to know the difference between all the legal terms. For example, it can be hard to know the difference between a testator vs. an executor.
In this guide, we’ll explain these legal terms associated with writing a will.
What is the difference between a testator vs. executor?
A testator is a person who owns and creates the will, while the executor is an individual appointed by the testator who follows the instructions of the will after the testator passes away. In other words, the testator is in charge of expressing their wishes with respect to their assets through their will until they die, and after death, the executor manages making sure those wishes are executed or followed.
Testator vs. executor FAQs
Whether you’re planning your own will or someone close to you has died, understanding the roles involved, like a testator of a will, can help you feel more empowered and confident as you navigate end-of-life decisions.
Below are answers to several frequently asked questions regarding testators, executors, and more. Lawyers, legal advisors, and paralegals are also great resources to answer more in-depth questions, or those specific to you and your family’s situation.
What does the word “testator” mean in a will?
Testator, or testator of a will, refers to a person who made a will that is in effect at the time of their death. Even if they’ve already passed away, they’re still considered the testator if there was a legal and valid will in place. It’s a bit of an outdated word, and you don’t normally hear it used outside of discussion of wills.
What is the proper testator pronunciation?
The word “testator” comes from the Latin word “testari,” meaning “to make a will” or “declare.” The proper pronunciation sounds like “teh-stay-tr.”
Who is considered the testator?
The testator is the person who created the will and who the will involves. A will includes the testator’s final wishes regarding their estate, property, and assets.
Read more: How to write a will at home
What is the difference between a testator and a testatrix?
A testatrix refers to the female equivalent of a testator, as the suffix “trix” indicates a female version of the noun. However, that term is considered rather old-fashioned. Testator is now more commonly used to address both males and females.
Who can be a testator?
Anyone can be a competent testator as long as they are at least 18 years old, are competent, and of sound mind.
A competent testator understands the extent of their property and estate and can determine how and to whom they’d like to distribute their assets to after dying. They must also be capable of identifying the beneficiaries of their belongings. Essentially, a competent testator needs to understand the consequences of what they’re bequeathing and to whom and why. The fun term for this is “understanding the object of their bounty.”
Alternatively, someone is considered an incompetent testator if they have a mental deficiency that prevents them from comprehending the above terms. In this case, they can’t write their will on their own and will likely require someone to create it on their behalf. They can do so by submitting an application to the Court of Protection, which will help them appoint a deputy to secure what’s known as a statutory will. Essentially, this deputy can be a friend, relative, or professional who will make decisions associated with the will in the testator’s best interest.
Typically people under the age of 18 can’t make their own wills, but some exceptions may be made.
What if someone dies without a will?
If someone dies without a will, then they’re not considered a testator. Instead, they have died intestate. Each state has its own intestacy laws, which determine how the deceased’s assets and property will be distributed.
Who is appointed by a testator?
The testator will usually appoint an executor. The executor is the person the testator assigns to oversee the process, which involves following the instructions to carry out the deceased’s affairs and final wishes usually overseen by a court. These duties often include accounting for all the assets, divvying them up to the appropriate recipients, and settling any debts.
However, not every testator assigns an executor. If the testator doesn’t name an executor before passing away, then the court will name one.
Read more: What happens to your debt when you die?
Who can be an executor?
An executor can be a relative, close friend, or attorney, but it can also be an institution, such as a trust company or a bank, your financial advisor, or CPA.
If a testator decides to choose a person, they must be at least 18 or 21 years old, depending on the state in which they reside. Oftentimes, the executor needs to be a U.S. citizen, and in some states, they can’t be convicted felons.
For more information on appointing an executor, check on your individual state laws.
What is a testator signature?
A testator signature is the signature that they use to sign the will, validating it, so that the court accepts the will. Without a signature, a will most likely is not considered valid.
At the time of signing the will, the testator can’t be under any coercion or duress — they must be under their own free will.
In most states, a testator needs to sign their typewritten will with at least two adult witnesses present, who then sign the will as well. There are also rules around who qualifies as an acceptable witness. For example, witnesses need to be at least 18 years old and often can’t be a beneficiary in the will.
In other states, a handwritten will signed by the testator alone, known as a holographic will, is also considered valid.
Alternatively, in states like North Dakota and Colorado, a testator only needs a notary (no other witnesses) present when signing the will.
Before signing their wills, testators are encouraged to review their state laws regarding signatures and witnesses to help ensure it stands up in a court of law.
Educating yourself on some of this legal terminology is an easy way to feel empowered when you begin to prepare your own will. The more you understand, the more confident you’ll feel about making your final decisions and ensuring your wishes are granted. However, if you have additional questions about writing a will, we encourage you to seek professional legal advice.