A will is a
formal letter to the probate court judge declaring what
the maker wants after death.
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 2006 LexisNexis, a
division of Reed Elsevier Inc.
