Last Will & Testament
An Introductory Guide to the Last Will & Testament
It can be stressful to consider creating your Last Will & Testament—you’re acknowledging that you have to prepare for your own inevitable demise by actively planning for it. But creating a Will is the smartest way to stay in control over who gets what of your property, who will administer your estate, and who will serve as guardian of your children.
Do I Need a Lawyer for a Last Will & Testament?
The complexity of your case, rather than the sole factor of cost, should be considered. You should seek advice and assistance from a qualified professional estate planning lawyer for this important matter. Here are some of the more complex factors that also make it advisable to talk to a lawyer:
- If you have a large estate or larger than the exemption allows for estate or inheritance tax
- If you are married
- If you have children
- If you have a blended family
- If you think some of your relatives might try to contest your Will
- If you think someone might argue that you were not of sound mind when you signed your Will
- If you own part of a small business
A Will has to meet the requirements of state law. The language should be specific, unequivocal, and accurate. So often when Wills are created without the assistance of an estate planning lawyer, there are issues later that could have been avoided. A lawyer will use language that is understood by executors of Wills, officers of the court and beneficiaries. Should you need any of these items clarified, it’s best to speak with an estate planning lawyer. Once you speak with an estate planning lawyer, you can determine if additional estate planning may be needed.
What is a Last Will & Testament?
A Last Will & Testament is the legal document by which you designate who is to receive your estate, upon your death. Within the provisions of your Last Will & Testament, you nominate an executor or personal representative—either an individual or an institution—as responsible for the administration of your estate and the disposition of your property.
Clear and reasonable instructions are important for preventing possible legal challenges that could delay probate. After death, if probate of the Will is necessary, it is normally submitted to the probate court of the county in which the person who created the Will resided. Depending on the complexity of the estate and whether there are legal challenges to the Will, the probate process may be reasonably short or protracted.
The Basic Elements of a Last Will & Testament
- Testator/Testatrix: The testator/testatrix is the individual who has made a Will.
- Executor/Personal Representative: The executor/personal representative petitions the court to open the probate of the estate. After the executor identifies, values and inventories all estate assets, creditors will normally have a specified time period during which they may make claims against the estate. The executor reviews the claims and makes the decision whether to approve or deny a claim. Once all assets have been accounted for, creditor claims, tax issues, and any other estate issues have been addressed the executor/personal representative seeks a final order allowing the transfer the remaining estate assets to the proper heirs, devisees, and legatees.
- Devisees & Legatees: The individuals and organizations named in the Last Will & Testament that receive assets upon the testator’s death.
- Bequest section: The bequest section specifies who is to receive specific personal property under the Will. A specific bequest is a gift, item or asset that will be given to a named person or entity. An example of a specific bequest is providing your diamond ring for your daughter as a gift or distributing a specific amount of money for each of your grandchildren.
What are the Requirements for a Last Will to be Valid and Legally Binding?
Each state has its own list of requirements to ensure that your Will is legally binding. If these requirements aren’t observed, then the document will not be valid and legally binding. You should seek advice and assistance from a qualified estate planning lawyer to confirm that your Will is properly prepared and executed.
What is the Difference Between a Living Will and a Last Will & Testament?
These two documents serve very different purposes.
A Living Will states your wishes regarding life-sustaining treatment, artificially administered food and water, and other end-of-life decisions.
A Last Will & Testament is a legal document that provides instruction on what should happen to your estate assets in the event of your death.
A Last Will & Testament names who will serve as guardian(s) for your minor children and who will carry out the Will’s provisions through the probate process in the event of your death. The probate process is the court-supervised process of authenticating a Last Will & Testament (if there isn’t a Will, then state law will designate how your estate will be distributed), the appointment of a personal representative or executor/executrix to be the legal representative of the estate, determining heirs, devisees, and legatees, addressing creditor claims, and the final distribution of the estate.
How Often Should I Update My Will and How Do I Make Changes?
Updating your Will is important so that your estate isn’t subjected to needless challenges and delays.
It is usually recommended that you update your Will under any context where what has been stipulated becomes inaccurate, such as moving out of state, getting divorced, getting married, having or adopting a child, losing a loved one who is a beneficiary in your Will, or changing your mind about beneficiaries and assets. Moving within state generally does not require an update to your Will.
Updates should be made whenever there is a relevant change in the law, your finances or personal circumstances. For example, if you’ve made a promising investment or have reason to expect a significant success in your business, you may wish to consider an appropriate strategy.
Consider these eight categories as indicators to update your Will:
- Changes in the law
- Impending good fortune
- Financial setbacks
- Change in committed relationships
- Becoming a parent
- Becoming a grandparent
- Losing a spouse
- Bad health
These are all reasons to consider updating your Will and should be discussed with your estate planning lawyer.
Making changes to your will
- Codicil: Small changes to your Will can be made by creating a codicil, a secondary document attached to your original Will.
- Substantive changes: If you have decided to make substantive changes, it’s often most efficient to create and execute a new Will. If you have a prior Will, you will want to make sure and seek advice and assistance from a qualified estate planning lawyer to make sure you properly revoke your prior Will.
Who has the Right to Contest my Will?
A Will can be contested for any number of reasons. If it wasn’t properly witnessed, you weren’t of sound mind when you signed it, a beneficiary feels slighted, or if there is any kind of legal fault with the document itself, then a Will can be contested. The best defense is a clearly drafted, validly executed Will in unequivocal language.
Who inherits what is just the beginning. Let’s think through this part of your estate planning together.
This is not intended to be legal advice. Each state has different laws governing estate planning. Please contact a qualified professional estate planning lawyer for further information.