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What Is a Last Will and Testament?
Let me tell you directly: a last will and testament is a legal document where you lay out your final wishes for your assets. You specify exactly what happens to your possessions—whether you want them going to another person, a group, or even donated to charity.
Beyond that, you can use it to address matters like dependents, account management, and your financial interests. Keep in mind, some states recognize non-standard wills like holographic ones, but others don't—check your local laws.
Key Takeaways
If you have a last will and testament, you gain some control over your assets after you die. Without one, dying intestate means the courts handle everything, distributing your estate as they see fit. For parents, this could mean the courts appoint guardians for minor children without your input.
Assets like trusts, financial accounts, or life insurance with named beneficiaries skip probate entirely. And today, you can draft a will affordably through online tools.
How a Last Will and Testament Works
Your will directs how your assets—bank balances, property, or valuables—are distributed, including who gets what and in what amounts. You can set up guardians for any surviving dependents too.
If you own a business or investments, specify who inherits them and when. You might even direct assets to charities, institutions, or organizations.
You write this while alive, but it only activates upon your death. You'll name an executor to handle the estate, and a probate court typically oversees them to ensure your wishes are followed.
This document forms the core of your estate plan, guiding the probate court in settling your affairs. Remember, assets with designated beneficiaries, like life insurance or retirement plans, pass directly and aren't part of probate.
You don't always need a lawyer; many wills are legal without one.
What Shouldn't Be Included in a Will
Don't put jointly held property in your will, as it passes automatically. Funeral plans belong in a separate, accessible document for your family or executor. Life insurance and retirement accounts should have beneficiaries named on their forms to avoid probate.
What a Will Doesn't Do
A will isn't useful for everything after death. For instance, it doesn't cover property in joint tenancy, living trusts, or accounts with beneficiaries like life insurance, pensions, IRAs, 401(k)s, stocks, bonds, or payable-on-death accounts—these go straight to the named recipients.
Wills don't always avoid probate; your directed assets might still get delayed in court for months, incurring fees for lawyers, executors, and the court.
Avoid including funeral directions in your will, as it might not be reviewed soon enough—put those in a separate document.
You can't attach most conditions to gifts, like requiring marriage, divorce, or religious changes, though some conditions might be allowed.
A will won't reduce estate taxes or let you leave money directly to pets, since they can't own property; instead, leave them to a trusted person with funds for care.
For long-term care of someone with special needs, set up a special needs trust to provide income without affecting government benefits.
Fast Fact
You can add things like a power of attorney or medical directive to your will to guide the court if you become incapacitated.
Last Will and Testament Requirements
To make a valid will, you need to be of sound mind—over the age of majority, understanding your property and what it means to bequeath it.
Identify your assets and beneficiaries clearly. Designate an executor to carry out your instructions.
Sign it with witnesses—most places require at least two unrelated adults over 18; check your state's rules, including if notarization is needed.
Types of Wills
There are four main types: simple, joint, testamentary trust, and living wills.
A simple will lists your assets, beneficiaries, executor, and guardians for minors. You can create one easily online with templates, but get legal advice if needed.
A joint will covers two people, usually spouses, executing in favor of the survivor upon one death, but it's inflexible and less common now.
A testamentary trust will sets up trusts after your death and probate, ideal for long-term care of minors or those with special needs.
A living will handles your medical care if incapacitated, providing instructions on treatments and life support—it doesn't distribute assets. You can get forms from medical facilities or your state, no lawyer required, but follow state requirements.
Wills vs. Trusts
Wills and trusts are key estate tools but differ. Trusts are entities you create to hold and distribute assets as instructed, managed by a trustee.
They come in living or testamentary forms; a will can create the latter. Trusts activate immediately, avoid probate, and stay private, but they're costlier than wills and only cover assigned assets.
Wills activate at death, go through probate, and are public. Trusts don't name guardians but can be revised if revocable. Wills can be challenged in court and follow inheritance rules, while trusts generally don't.
How to Create a Will
Decide if you'll use a lawyer or an online service to start. List the assets you want to include.
Name beneficiaries and what each gets. Choose an executor and get their consent; appoint guardians for minors and confirm with them.
Sign with required witnesses, possibly notarize. Store it safely, like in a bank safe deposit box, ensuring your executor can access it.
Review and update periodically. Online makers make this simple and cheap, guiding you through questions to fill forms.
Consequences of Not Having a Will
Dying intestate lets the state execute your estate, distributing property without regard to your family's needs and possibly appointing guardians for children.
In many states, it goes to spouse and children first under community property or other laws. If no kin, the state takes it.
Additional Notes
You can find online will makers that are user-friendly and available nationwide. A codicil lets you amend your will without rewriting it entirely.
A living will is for healthcare decisions, not assets. Costs vary: free if DIY, low for online, higher for lawyers.
The Bottom Line
Your last will and testament is essential for stating final wishes on assets and distributions. It can't handle taxes or avoid all probate, but it's straightforward to create if you meet requirements—always verify your state's laws.
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