Importance Of A Last Will And Testament

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Donna Mae Scheib

Importance Of A Last Will And Testament

Posted by Donna Mae Scheib on June 01, 2019

Importance Of A Last Will And Testament

A last will and testament is a legal document that gives instructions for the distribution of your estate after your death. Your estate includes all of your property and assets, as well as the custody of dependents such as minor children, disabled children, or aging parents. The creator of a will is called a testator, and the surviving person they assign to manage the estate and carry out the recorded wishes (under the moderation of probate courts) is called an executor. Beneficiaries are the parties who receive property and assets.

A last will and testament is the primary document comprising an estate plan. Estate plans can additionally or alternatively include revocable living trusts, whose trustor appoints a trustee to carry out the transfer of property to a beneficiary without probate. A last will and testament is not to be confused with a living will –an advance directive outlining the medical care a person wishes to receive while incapacitated, sometimes accompanied by a power of attorney advance directive assigning a surrogate, a Do Not Resuscitate order or a POLST form near the end of life. Both forms of will are highly recommended to adults of all ages. Just as a lack of a living will create conflict regarding an incapacitated person’s wishes, a lack of a last will and testament can leave surviving loved ones in the dark about a deceased person’s wishes. The state government will deem the deceased intestate and act as executor at the possible expense of their wishes. Intestacy laws also vary greatly by state, as do the conditions for validating a will.

Where there’s a will, there’s a way. Everyone can benefit from having a last will and testament at any time in their lives, and the rest of this article will explain how and why you should make one.

Why You Should Make a Will: Coverage

All adults should make a last will and testament so that there can be no confusion about their wishes after death. A trust covers most of the same basic tenets as a will, but takes action while you are alive and only covers property explicitly transferred into it. Consequently, a trust might not cover all of the same property like a will, and a will cannot cover property already transferred into a trust. However, a will covers all of the following:

  • Naming beneficiaries to receive property and assets
  • Selecting an executor
  • Choosing guardians for dependents and their property
  • Planning payment for taxes and debts
  • Making arrangements for pets
  • Supplementing a living trust

Besides the aforementioned inability to cover property in trusts, the only property a will does not cover is jointly owned property and that covered by other forms such as life insurance and retirement plans. In other words, a will ensures the effective transfer of most property. Choosing an executor from either a legal practitioner or reliable loved one, often a major beneficiary such as a grown child or spouse, usually ensures that your wishes are met.

There can be severe consequences for dying intestate. Most state intestacy laws prioritize spouses first as beneficiaries, then children, then parents or siblings, and then more distant relatives. This decision may not necessarily reflect how you would want the transfer to be, especially for decisions as life-changing as those affecting the custody of children. As one Forbes article notes, an estimated 63% of Americans lack a last will and testament; intestacy conflicts include family in-fighting, prioritization of new spouses overgrown children, losses for unmarried partners, loss of life insurance to the state, misplacement of the estate, extra property taxes for a partner, and difficult navigation of bureaucracy among surviving loved ones. Writing a will can protect your loved ones from all of these problems.

How to Make a Will

Most people make their last will and testament through one of two means: using a form template or hiring a lawyer. Templates are available for free online, whereas hiring a lawyer may cost several hundred dollars; however, some opt for the latter option to handle complex estates and ensuring that their state government honors the will based on its specific laws. No matter the state, you can expect to write a will according to wishes you have previously discussed with family (while being “of a sound mind”, meaning capable of making your own decisions), date it and sign it along with two witness signatures (from non-beneficiaries). These steps will validate your will as far as the state is concerned and reduce the number of changes you may make to the will in the future. State laws vary greatly on the recognition of holographic wills (written in the testator’s handwriting) or nuncupative wills (spoken, often on the deathbed).

Complex estates include large ones exceeding the state or federal estate tax exemption, those from which a testator disinherits a spouse or child, those that cause family conflict (e.g. regarding the testator’s soundness of mind), and those involving business ownership, trust ownership, dependent custody, or pet care. Besides consulting a lawyer, you can opt to specialize your will. The instructions above cover simple wills, the most common type, but other types include a pour-over will (which transfers assets into your trust) or a mutual will (which covers two spouses simultaneously, usually prioritizing the surviving spouse first and children afterward).

Many previous testators seek to update their wills to account for changes in family situations or assets, marriage, divorce, and other events that would affect inheritance. One method is to make a codicil, a new document explaining the wishes you seek to add or remove; date it, sign it and collect two witness signatures as you would with the will, and probate courts will take it into account. Another method is to create a new will explicitly revoking the old one, also signed, witnessed, and dated; this will clear up any confusion about which version is current since probate courts could otherwise default to your old will if you had only destroyed your personal copies.

As the saying goes, you can’t take anything with you. Leaving clear instructions in this most important of posthumously-actionable documents can will your best possible legacy into being.

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