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Just want to make sure I have the right terminology. The person who makes a will and testament is a testator. The executor (also known as an administrator) has the responsibility to carry out the desires of the testator, that is, ensure that the testator's property is distributed according to the details in the will.

It's also true that, from what I've seen, the testator executes his/her will when signing it in the presence of a required number of witnesses, who confirm the identity of the testator, or in the case of a holographic will the will is executed simply by handwriting the will and signing it (without anyone witnessing it).

I just want to make sure that the executing of a will when a testator signs it is a completely different thing from the executing of a will by a chosen executor. I assume that the testator executing his/her will (at the time of signing it) does not in any way become "executor" and nor should they be conflated with the "executor of the will".

If this is the case, then I assume it's just a matter of coincidence that the words used are the same. By that I mean that in English we'd say that someone who executes is either an "executer", "executor", or "executioner", but despite that when a testator executes a will they in no way become an executor of the will in legal sense, right?

  • Shorter: Testator means someone who signs as will; executor carries out a deceased testator's directions under the will. The executor is the executor of the will. A testator is never called an executor. You could puzzle over how it got that way but that is what the words have come to mean. – ohwilleke Jun 30 at 16:49
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Yes. There are two different meanings of "to execute" in law. Also note that terms can vary in different jurisdictions. In the UK, most people wouldn't use 'to execute' when signing a Will - they'd just sign it.

1. To bring a written document into effect.

Any mark made by the testator on the document validates the will, provided that they intended it to be their signature, and that this signature is meant to execute the will.

https://www.thegazette.co.uk/wills-and-probate/content/100522

The Witness Requirement to Execute a Will

A will typically must be properly witnessed to be valid.

https://www.alllaw.com/articles/nolo/wills-trusts/witness-requirement-execute.html

Amendments to a will can only be made while executing a will or after the date of execution of the will. Amendments to a will must comply with the same requirements for a valid will and if you cannot write, with the same requirements listed under that heading.

http://www.justice.gov.za/master/m_deseased/deceased_wills.html

The term "execute" is not restricted to Wills:

When a person "executes" a document, he or she signs it with the proper "formalities". For example: If there is a legal requirement that the signature on the document be witnessed, the person executes the document by signing it in the presence of the required number of witnesses.

https://www.apostille.us/faq/what-does-it-mean-to-quotexecutequot-a-documen.shtml

Documents are most commonly executed as simple contracts. ... Deeds can also be advantageous even when they are not strictly required by law. For example, if only one party under a contract is receiving a real benefit from an agreement, it would be advisable under English law to execute the contract as a deed so that it is not void for lack of consideration. Another potential advantage of deeds is that they have a longer statutory limitation period than contracts: twelve years.

However, a deed requires some additional execution formality beyond a simple signature. Deeds must be in writing and will typically be executed in the presence of a witness, although in the case of a company a deed may be executed effectively by two directors or a director and the company secretary.

https://united-kingdom.taylorwessing.com/synapse/commercial_execution.html

2. To carry out the instructions in a Will of a deceased person (in the UK the corresponding role in relation to an intestate estate is an administrator).

An executor (male) or executrix (female) is the person named in a will to perform these duties. An administrator (male) or administratrix (female) is the person appointed by the probate court to complete these tasks when there is no will or no executor or executrix has been named in the will.

http://www.attorneys.com/wills-trusts-and-probate/executor-versus-administrator

Executors and Administrators are responsible for administering the Estate of someone who has died. They are known collectively as Personal Representatives.

The Executor’s authority is taken from the Will, and comes into effect immediately on the death of the person who made the Will. In theory, the Executor can exercise all their powers from the date of death.

https://www.co-oplegalservices.co.uk/media-centre/articles-may-aug-2017/the-difference-between-an-executor-and-an-administrator/

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“Executor” is simply a word that means “one who executes”

Where “execute” means “do (something)” - like cut someone’s head off, hence “executioner”.

So the testator “executes” the will by signing it and the testator “executes” the will by carrying out the testator’s wishes that it embodies.

Over time, the tradition of nominating an “executor” for the will became formalised so that today the executor is the title of the person(s) who give effect to the will.

  • the testator “executes” the will by carrying out the testator’s wishes that it embodies. Is this a typo? – Nate Eldredge Jun 30 at 17:45
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The person who executes a will is the executor; but legally executing a will means putting it into effect (the same sentiment in other words). The person who signs a will is not executing it (because it cannot be put into effect, or executed, until death); he is validating it.

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