The Tried and True Estate Planning Document:

• What is Last Will and Testament?
• Who Needs a Last Will and Testament?
• Who are the Parties to a Last Will and Testament?
• What are the Last Will and Testament Requirements?
• Is it Difficult to Amend a Last Will and Testament?
• What happens Your Original Last Will and Testament is Lost?
• What are the Advantages of a Will over a Living Trust?
• What are the Disadvantages of a Last Will?

What is a Last Will and Testament

A last will and Testament, in most cases, is a written document where you make a disposition of your property to take effect after your death. It is the most familiar, and therefore the most common means for people to express their wishes in regards to how they would like their estates to be handled in the event of their deaths and presents many advantages over the alternatives.

A properly drawn and executed will, created with the help of MyWillPros and your new attorney, provides your loved ones with a well organized plan to properly carry out your intentions after you die. A will effectively transfers the ownership of your property to specific beneficiaries with a relative ease and swiftness not possible when one dies without a will or living trust. You have the ability in your will to determine who will take care of your children, who will make sure that your estate is distributed properly and precisely how you wish your estate to be handled. more

Who Needs a Last Will and Testament

When a person dies without a valid will and without making alternative arrangements to distribute property, such as a living trust, the family members of the decedent face a long and costly legal process called intestacy. When a person dies without a will, they die intestate and the state, not the decedent, decides how the estate will be divided and distributed. Often, therefore, the decedent’s assets and worse, their children end up in the hands of the wrong people.

When a person dies intestate, there is no specification on how the assets should be distributed to a minor child. The court will put all assets designated for minor children in a trust for that child, and assign a trustee, but the assets will be delivered to the children once they turn 18, which may not be in the best interest of the child. A will allows the testator to make the decision ahead of time as to at what age or ages the child should have access to the inheritance.

While it may not seem so, it is equally important for those people who are unmarried and without children to have a last will and testament. Intestacy laws only recognize relatives. Therefore, if a person dies intestate, without any relatives to speak of, his or her estate is not distributed to close friends of the person or charities, as this person may have wished, but simply goes to the state or local government.

In short, every adult with any assets and/or children needs a will.

Parties in a Last Will and Testament

Testator: The testator is the person who is creating the Last Will and Testament. For a will to be valid, in most states, a testator must be over the age of 18 and must be of sound mind. In other words, the testator must be capable of understanding what a will is, and what the will says.

Beneficiary: A Beneficiary is a person named in the will, by the testator, to receive a part of the testator’s estate. A beneficiary may be a person, a charity, a business, etc.

Executor: The executor to a will is a person or financial institution, named by the testator within the will, who is assigned the task of carrying out the wishes of the testator when the testator dies. Ordinarily, the exector is a close friend or relative of the testator or often is the testator’s attorney. The executor to a testator’s will should be informed before the testator dies as to the assignment of this responsibility in order to make sure that he or she is willing to fill that role. The executor will be responsible for consolidating and managing the testator’s property, collecting any and all debts owed to the testator, paying any and all of the testator’s debts to the testator’s creditors, and distributing the remainder of the testator’s assets to the appropriate beneficiaries.

Legal Guardian: Testators who have minor or dependent children may use a will to name a legal guardian to provide care for their children should they be left parentless. If there is no guardian named in the will or there is no will, the court would appoint a guardian to the children, potentially the appointed guardian would be someone whom the testator would not necessarily have wanted to raise their children. Generally, the testator will name a family member or close friend as the legal guardian to the children. As with the executor, it is important to ask potential guardians in advance of creating the will if they would be up to the responsibility. It is important to also name a substitute guardian in the will just in case the named guardian is unable to take care of the children.

Trustee: The trustee in a will is a person assigned the task of caring for the testator’s assets for the benefit of beneficiaries whom are either under a certain age or are unable to properly make decisions in regards to their inheritance. The laws as to what a trustee may or may not do with the assets varies from state to state but generally, a trustee may not use the assets to better his or her own situation.

What are the Requirements of a Last Will and Testament?

The Testator Must Be at least 18 Years of Age.

The Testator Must Be Competent: The classic common law definition for competence has been adopted by every state in regards to the competency of a testator. By common law, the testator must:

1. Know the natural objects of his or her bounty (ie: know and understand the existence of spouse, children, and, where appropriate, grandchildren
2. Be aware of the nature and extent of his or her estate, although detailed knowledge is generally not required.
3. Be able to form a donative intent, or, being able to understand the nature of the act of the signing of the will.

Having an attorney involved will ensure that competence, or lack there of, will not be an issue.

The Will Must be in Writing. While about 30 states do recognize hand-written (holographic) wills as valid, the other 20 do not. Even though those 30 states do recognize holographic wills, they are often attacked as being invalid by family members. It is always safer to have a typed will, executed properly, under the direction of your attorney.

The Will Must Be Signed by the Testator: While this is the law in all states, most states also allow another person to sign the testator’s will under the testator’s direction. This generally occurs when a testator is unable to sign their own name due to a physical inability. When the testator’s name is signed by another person, under the direction of the testator, it is called a proxy signature and it is valid so long as the signor also signs their own name and that the signor is not also an attesting witness.

There Must be Attesting Witnesses. While most states require that there are at least two witnesses to a will, some require three while others only one. Different states have different requirements in regards to witnesses. Many states require that the testator sign their will in the presence of the witnesses while others simply require that the testator acknowledge their signature in the presence of the witnesses. Some require that the testator sign the will or acknowledge their signature to all of the witnesses at the same time while others require that the witnesses sign within 30 days of one another. This is why it is important to have an attorney involved to keep a testator informed as to the laws of that state.

The Will Must be Published. This simply means that the testator must communicate to the witnesses that the document they are signing is a last will and testament as opposed to some other sort of legal document.

No Undue Influence: As with any of these sensitive legal documents, a Last Will and Testament may be challenged in court if there appears to be any undue influence in its drafting. An undue influence is, for example, your son tells you that unless you include him in your Last Will and Testament, he will not allow you to see your beloved grandchildren. An attorney will make sure there is no undue influence.

How do you Amend or Revoke a Last Will and Testament?

Improper Amending of a Will. Amending a last will and testament is not as simple as one might think. Many believe that they can amend their will by simply crossing something out or adding something in writing. The truth of the matter is, no such actions are actually valid alterations. In fact, in attempting to alter part of a will in such a fashion could result, although its not likely, in the revocation of the will in its entirety. To effectively alter your last will and testament, it is necessary, to either write a new will, which will supercede any prior wills, or write a legal document called a codicil.

Writing a New Will and Testament. When a person dies, whichever last will and testament was written last is the one which is used to probate the estate. All prior wills are seen as invalid.

The Codicil. A codicil, for all intents and purposes, provides the testator with the ability to make changes to a part or parts of their will, in writing, without effecting the rest of the will. As long as a codicil is properly executed, it will be seen by the probate court as a valid alteration and will be read during the probate period as part of the will. The requirements for a valid codicil are precisely the same as the requirements for a valid last will and testament. In other words, the testator must be 18, must be competent, the instrument must be in writing, it must be signed, published and witnessed.

Revocation of a Last Will and Testament. The requirements for revoking a last will and testament differ slightly from state to state but ordinarily include burning, tearing in half and “canceling”, which generally requires the testator to write “Cancelled” across each page of the will. The testator and only the testator is able to revoke his or her will with his or her own actions.

What Happens if your Original Last Will and Testament is Lost?

In many states, when an original last will and testament is not found when a person dies, it is considered revoked by the testator. This is an excellent reason to have your attorney store your Last Will and Testament in their locker.

What are the Advantages to a Last Will Over a Living Trust?

Less Up Front Cost: A last will and testament is less expensive up front than a living trust but in the long run, may cost your estate considerably more than a trust.

Convenience: There is no further process, like funding a trust, involved in a last will and testament, during your lifetime. Once your will is written and executed, your estate is your estate. No further time or energy are required to make sure your estate is distributed properly.

Safety: During probate, the executor is under the close scrutiny of the court because of accountings, inventory of assets, etc. There is no room for error or deceit on behalf of the executor.

Appointment of Guardian: In a last will and testament you are given the ability to name a legal guardian for your children. When you use a trust as your estate planning device, you must create a pour-over will, which will allow you to name a guardian, as well as devise specific bequests (ie: Grandma’s lamp). The pour-over will is probated just like a will and the execution procedure is the same.

What are the Advantages of a Living Trust over a Last Will and Testament.

Privacy: Unlike a last will and testament, which is filed with the probate court and becomes a public record, visible to all, a revocable trust provides privacy in regards to your estate.

Efficient: A living trust can prevent the excessive delays in the distribution of your estate, commonly encountered while probating a last will and testament, because of its freedom from the probate courts and the rules and requirements which dictate the process.

Less Expensive In the Long Run: Because there is no probate proceeding, there are no court fees, attorney fees or filing fees, as with a last will and testament. Generally, the administrative expenses associated with a living trust are considerably less expensive than the expenses associated with probating a will and therefore less burdensome on your estate.

Out of State Real Estate: If you have real estate (land, house, condominium, etc.) outside of your state of domicile, and you die with a last will and testament, that property would be involved in an entirely different probate proceeding in the governing state’s court. Therefore there would be two probate proceedings in entirely different locations. With a living trust, the title to that real estate would be placed into the trust and would therefore be distributed appropriately, with all of the other assets in the trust, without the direction of the court.

Almost Always Valid: The validity of a living trust is much less likely to be attacked than a last will on grounds of mental incapacity, fraud, or undue influence.

Control: During your life, as creator of a living trust, you are able to set a pattern for how you would like the trust managed by the trustee in the event of your death or incapacity.

Ease of Amendment: Amending a living trust is far easier than amending a will.