What Is Testamentary Succession?

Testamentary succession refers to the process by which a person’s assets are distributed after their death according to the instructions left in their will. Unlike intestate succession (where assets are distributed according to law when no will is present), testamentary succession ensures that the deceased person’s wishes, as documented in a valid will, are followed. The will must go through a legal process called probate, where it is validated, and the estate is administered accordingly.

Key Concepts of Testamentary Succession:

Will (Testament):

A will is a legal document in which a person (the testator) specifies how they want their assets and property to be distributed after their death. In testamentary succession, the instructions in the will take precedence over other methods of succession.

The will may name beneficiaries, specify which assets each will receive, and appoint a testamentary executor to manage the distribution process.

Probate Process:

The probate process is the legal procedure through which a will is validated by the court. During probate, the court ensures that the will is authentic, the testator was of sound mind at the time of making the will, and all debts and taxes are paid from the estate.

Once the probate is granted, the executor appointed in the will carries out the distribution of the assets according to the deceased’s wishes.

Executor of the Will:

The executor is the person or entity named in the will to carry out the distribution of the estate. The executor has the legal responsibility to manage the deceased’s assets, pay any debts, and distribute the property as directed in the will.

The executor plays a crucial role in ensuring that the testamentary succession is carried out smoothly.

Distribution of Assets:

The assets of the deceased are distributed based on the terms set out in the will. This may include real estate, bank accounts, personal property, and investments.

Beneficiaries are the individuals or organizations designated in the will to receive a portion of the estate.

Testamentary Succession vs. Intestate Succession:

Testamentary succession occurs when a person dies leaving behind a valid will that specifies how their assets should be distributed.

Intestate succession applies when a person dies without a will, and their estate is distributed according to the legal framework of the jurisdiction, typically favoring spouses and children as primary heirs.

Revocation and Amendment of Will:

The testator has the right to revise or revoke their will at any time before death, as long as they are mentally competent to do so. This flexibility ensures that the will remains an accurate reflection of the testator’s wishes.

Any changes to the will should be properly documented through a codicil (an amendment to the will) or a new will.

Legal Requirements for Testamentary Succession:

To ensure the validity of testamentary succession, a will must meet certain legal requirements:

• Testator’s capacity: The testator must be of legal age and of sound mind at the time of making the will.
• Witnesses: In most jurisdictions, the will must be signed by the testator in the presence of witnesses who also sign the will to confirm its authenticity.
• Proper execution: The will must be executed according to the laws of the relevant jurisdiction, including any specific formalities required by local law.

Example:

Let’s say Mr. D has a will that outlines the distribution of his property.

In his will, Mr. D specifies that his house should go to his son, his bank account should go to his daughter, and his car should go to a charitable organization.

Mr. D’s executor, named in the will, is responsible for ensuring that these instructions are carried out after Mr. D’s death.

If the will goes through probate and is found to be valid, the executor will distribute the assets as per the will.

Key Points to Remember:

• Testamentary succession ensures that a deceased person’s wishes regarding the distribution of their assets are followed according to their will.
• The will must go through probate for validation and legal execution.
• An executor is responsible for managing the estate and distributing assets as per the will.
• If there is no will, intestate succession applies, and assets are distributed according to laws set by the government.
• The will can be revoked or amended at any time before the testator’s death if they are mentally capable.