Last Will and Testament

What is a last will and testament?

A last will and testament is a legal document that outlines the final wishes of the testator, or creator, of the will. A last will and testament is an essential tool in estate planning which allows you to:

• specify how your property and possessions should be distributed after death,
• name guardians for minor children or dependents,
• designate an executor to manage the estate,
• make charitable donations or gifts, and
• provide instructions for your funeral or memorial service.

Without a valid will, your estate may be subject to intestacy laws, potentially leading to unintended beneficiaries and family disputes. Creating a will ensures that your hard-earned assets are distributed according to your desires, providing peace of mind for you and your loved ones.

When to create a last will and testament

A last will and testament is a crucial document for ensuring your assets and property are handled according to your wishes after you die. Here are several key situations when you should prioritize creating or updating your will:

• Entering Adulthood: Once you turn 18, it is wise to create a basic will, especially if you have any assets or digital property.
• Marriage or Divorce: These life changes necessitate updating your will to reflect your new marital status and beneficiaries.
• Having Children: Designate guardians for your minor children and ensure their financial security through your will.
• Acquiring Significant Assets: As you accumulate wealth or property, a will becomes essential to dictate their distribution.
• Starting a Business: Protect your business interests and outline succession plans in your will.
• Approaching Retirement: Review and update your will to align with your retirement plans and estate goals.
• After Major Life Events: Significant changes like relocations, deaths in the family, or health diagnoses warrant will updates.
• Regularly (Every 3-5 Years): Even without major life changes, periodic reviews ensure your will remains current and valid.

Dying without a will, also known as "intestate," may lead to a lengthy probate process and the unintended or unwanted distribution of your assets. Implementing a will safeguards you and your family's interests. A basic will is generally sufficient to protect a testator's assets, but complicated estates may require more complicated estate planning.

Last will and testament guide

The primary role of a last will and testament is to identify how assets and liabilities will be handled after the testator—the person creating the will—dies. After payment of the debts, taxes, and expenses of administering the estate, the remaining assets that pass through the will are distributed according to its terms.

Wills also serve to identify who will be in charge of handling the estate and take care of administrative tasks like safeguarding assets, paying final expenses, settling and paying valid debts, navigating probate court, and filing and meeting any final tax obligations. All this occurs before any distributions to named beneficiaries and heirs are made. The person in charge of handling the estate is called different things in different states, but most commonly that person is known as the personal representative or executor of the estate.

A will can also nominate a guardian to have physical custody of minor children if a child’s parents die before he or she reaches the age of 18.

What is included in a will?

There are several types of wills, but the main components across the types remain the same, including:

• Personal Property and Assets: How and to whom your personal assets, such as accounts or belongings are distributed.
• Real Property: The disposition of any homes, buildings, or structures that you own.
• Guardianship: Testators with minor children can and should appoint guardians for their minor children or legal dependents.
• Executor: The representative of your estate in charge of ensuring that the wishes set forth in your will are followed.

Differences between a will and a trust

A trust is effective as soon as it is created and executed, while the provisions of a will take effect upon your death. The administration of a will requires the court probate process while trusts may be carried out on their own. Wills become public record after they are submitted to probate, while trust details remain private. Trusts have the flexibility to include conditions on asset distribution and timing, but wills are less flexible, with distribution occurring at the close of probate.

Types of wills

While a simple will is often sufficient to handle a person's estate, there are several types of wills that may be utilized to account for larger or more complicated estates, or other alternative dispositions.

• Pour-Over Wills: A trust takes effect while the creator is still alive. In the instance that a trust does not contain all of a creator's estate property, a pour-over will is often utilized to "pour over" the remainder of the testator's property into the trust upon the testator's death.
• Holographic Wills: Written and signed by hand, these wills are often made in emergency or unexpected situations. Unfortunately, these wills are not recognized as valid in many states, highlighting the importance of creating legally sufficient estate planning documents through professional services, such as LegalNature.
• Living Will: This outlines your medical treatment preferences if you become incapacitated. It specifies decisions about life-sustaining procedures, pain management, and end-of-life care. By creating a living will, you ensure your healthcare wishes are respected and reduce the burden on your loved ones during difficult times. 
• Will Trust: Establishes a testamentary trust upon the testator's death which must pass through probate since the operative document is still a will. These are often used to care for dependents or minor children and may set forth a plan for the care of the beneficiaries of the testamentary trust.

Other common will questions

Can I write my own will?

While there is no law against writing your own will, it is not recommended. Each state has its own distinct requirements that must be followed for a will to be legally sufficient. You do not need an attorney to write your will, but utilizing a professional service is highly suggested in order to avoid having an unenforceable document.

What happens if I do not have a will?

Passing away without a will is called dying "intestate," and dying intestate leaves your estate to be distributed according to state law instead of by your wishes. In most states, this passes your estate directly to your spouse, regardless of whether you are still together or separated.

Which items should not be included in my will?

Some properties should not be included in a will because they will be validly distributed by other means. Examples of these properties include the following:

• Jointly held property: These will often pass automatically to the surviving joint owner(s).
• Life insurance proceeds: Life insurance plans include beneficiaries that will receive the proceeds outside of the probate process.
• Retirement accounts: As with a life insurance policy, beneficiaries should be designated with the account so that the funds pass outside of the probate process.

How often should my will be updated?

It is often recommended that you review your will every 3 to 5 years to be sure the distribution of your estate is still in line with your wishes. It is also important to update your will after any major life events, such as marriage, separation, or divorce, death of a beneficiary, purchase or sale of significant real property, or moving to a new state or country. Regular, periodic reviews or updates to your will ensures that your estate distribution remains in line with your wishes.

When can my will be contested?

Courts will generally do their best to uphold and maintain a deceased's final wishes; however, the legal sufficiency or validity of a will can be contested under certain circumstances. First, only individuals with legal standing can contest a will, including current beneficiaries, previously disinherited beneficiaries, or individuals who would inherit under intestacy if the will were invalidated. The most common reasons to challenge the validity of a will include the following:

• Lack of testamentary capacity: The testator lacked sufficient mental competence when creating the will.
• Undue influence: Someone exerted pressure on the testator to alter the will's contents.
• Fraud or forgery: Deception was involved in the will creation or execution.
• Improper execution: The testator failed to meet the legal formalities required by state law when executing the will document.
• Lack of knowledge or approval: The testator did not understand or approve the will's contents.