A Last Will and Testament is often the first step taken to prepare a proper estate plan. Normally, when meeting with an estate client for an initial consultation, the attorney will go over the different types of estate plans available, including a will-based plan or trust-based estate plan. The definition of a last will and testament is a legal document that tells what a person’s final wishes are with respect to his or her dependents, possessions and debts. A last will and testament allows the person creating the will, also known as the testator, the ability to state who will be responsible for handling the deceased’s assets and debts and who will be taking care of the minor children of the deceased, if there are any.
What Is the Purpose of a Last Will and Testament?
People create a last will and testament so that their wishes are carried out once they die. Rather than leaving this task to their loved ones in determining how the deceased individual’s assets and debts should be handled, the last will and testament makes it easier for them by expressly putting the deceased individual’s wishes into writing. A will can do many different things including the following:
- Naming an executor who will be responsible for collecting all of the deceased’s assets and dividing them up accordingly. The executor will also be responsible for paying all outstanding debts and liabilities, including any taxes owed by the deceased. It is often recommended that the will name a successor executor in the event the first named executor is not able to serve the role or predeceases the testator.
- The will also will designate who will be the guardian for any living minor children of the testator.
- Many attorneys also recommend putting into writing what the person’s wishes would be if he or she has any living pets at the time of death.
- A will can also put into writing how the testator wishes debts and taxes he or she owes at death be paid.
- Lastly, a last will and testament is also often included as part of a trust estate plan to serve as a back up in the event the individual did not fund everything into the trust. If an asset exists that was not titled in the name of the trust, a pour-over will is used to make sure that asset is funneled through the will and into the trust.
What a Last Will and Testament Cannot Do
While a last will and testament can allow the testator to do many things, other tasks are restricted. These items that cannot be covered or included in a last will and testament include the following:
- Dealing with Certain Types of Property: Certain property is handled outside of probate court and the limits of a will. If the testator owned any property in joint tenancy with another person, tenancy by the entirety or community property with right of survivorship, that property will automatically go to the surviving owner. Proceeds that come from a life insurance policy will also be handled outside of a will, as well as any property that has been transferred through a living trust. Money that is held in a pension plan, individual retirement account, 401(k), payable on death account or transfer on death account will also pass outside of a will.
- Instructions for a Funeral: Many times, the loved ones of the deceased will not have any access to a will until weeks after the person dies, and funeral arrangements need to be made pretty quickly. It is for this reason that many attorneys recommend the person prepare a separate document, known as a funeral planning declaration, to allow the testator to spell out his or her wishes for funeral arrangements.
- Reducing Estate Taxes: A will is not the method by which to reduce the amount of federal estate taxes owed after the testator has died. These discussions need to happen long before that occurs and should be something discussed during that initial consultation with an estate attorney. Many other methods can be used to avoid paying or reducing paying estate taxes, including preparing a living trust or gifting property during the lifetime of the testator.
- Avoiding Probate: If an individual dies leaving a will, most states will require the will to be filed with probate court for the estate to be properly handled. If the person wants to avoid putting his or her loved ones through probate, it is recommended that other methods be sought for estate planning, including preparation of a living trust vs a will.
- Putting Conditions on Gifts: A few other legal limitations are put on what the testator can do within a will. The testator cannot put requirements or limitations on when a beneficiary can receive a gift. For instance, if it is the testator’s wish that a beneficiary gets married before receiving his or her inheritance, this provision is not easily enforceable. It can be attempted, but it also requires someone to actively enforce this provision to make sure it actually happens. Probate courts tend to stay out of family matters and not enforce these types of conditions if they are included in a will.
- Leaving Money for an Illegal Purpose: This provision often goes without saying, but in addition to not putting conditions on gifts, the testator cannot leave money or property for a specific, illegal activity.
- Leaving Assets to Pets: Estate assets can only be left to someone who can accept the property, and unfortunately, this list does not include pets. No matter much the testator considers a pet to be a member of the family, the money cannot be left directly to the pet. It can, however, be left to the person who is designated as the pet’s caregiver.
- Using a Will to Arrange Care for a Special Needs Beneficiary: If the testator wishes to set up a long-term care situation for a beneficiary who has special needs, this purpose is better served through a special needs trust instead of a will.
What Are the Legal Requirements for a Will to Be Valid?
Ultimately it depends on the law of the state where the will is written to determine what the specific legal requirements are necessary for a will to be valid in the U.S. However, certain requirements are almost always included regardless of the state, including the following:
- The testator must be over the age of 18 or must be an emancipated minor, meaning he or she is no longer within the legal scope of parental control, to enter into any contract, and that includes writing a will.
- The testator must also have what is known as testamentary capacity, meaning he or she is of sound mind. What this means is the testator must have full understanding over what assets the person has, the relationship he or she has with the listed beneficiaries and must not suffer from any mental illness or incapacity that impairs his or her ability to make decisions on his or her own behalf. The testator must swear that he or she is lucid and fully aware of what decisions are being made on the day that he or she signs the will, and the witnesses are normally there to attest to this fact, as well.
- All wills must have the signature of the testator. If a signature is missing, many probate courts will consider the will to be invalid. The signature must also be in the testator’s actual handwriting or signed by someone at the specific direction of the testator if he or she is physically not able to sign his or her name.
- Most states also require that at least two disinterested witnesses must watch the testator sign the will and must also sign the document after the testator. What disinterested means is these witnesses are not beneficiaries under the will.
A notary is not always required for executing a last will and testament but having a notarized self-proving affidavit will make the process easier for proving that the will is valid after the testator dies.
What Happens to Your Money If You Die without a Will?
Many times, the unthinkable does occur, and someone dies without a will or a trust executed. What happens to that person’s assets and money if he or she dies without leaving a will? When someone dies without a will, they are said to have died intestate. What this means is the state where the deceased lived at the time of his or her death will govern how the persons assets and debts are handled per that state’s intestacy laws. The laws can vary between state to state, so it is important that an attorney in the state where the deceased died is contacted before any property is distributed. Just because a relative will receive the property in one state does not mean that is the case for another state. These matters will also be handled by the probate court in the county or district where the deceased lived at the time of his or her death.
How to Write a Will
A last will and testament can be prepared by an individual or by an attorney. Many individuals choose to find a will template online to prepare the document, and in simple estates, this method can be easily done. However, it is important that the individual properly express his or her wishes and clearly name the individuals he or she wants serving as the executor and guardians for his or her children. If he or she is worried that the will may end up being challenged later by a disinherited spouse or child or fought by a creditor wanting to be paid, it would be advisable to contact an attorney to help craft the document to make sure that it is solid and can withstand a probate court battle.
When is a Last Will and Testament Not Valid?
If these basic requirements to establish that a last will and testament is valid are not met, the document will likely not be considered valid. The personal representative named in the will has the task of trying to prove to the court that the will is, in fact, valid. However, in the event the court is not convinced, the matter will then go through the intestacy laws. If it is found that the testator had a prior will before the one that is trying to be demonstrated to be valid, that prior will document will govern how the estate is handled. This situation can be tricky, especially if the testator has remarried or has changed who he or she wishes to receive property from his or her estate. It is extremely important for this reason that the will is properly drafted to ensure that its validity cannot be questioned later.
What Are Some Special Types of Wills?
Occasionally, a state will allow for what is known as a “holographic” will to be considered valid. A holographic will is one that is entirely in the testator’s handwriting. In some states, these types of wills do not even have to be witnessed. However, they can be very tricky when it comes to proving that 1) the testator actually wrote the document and that 2) these were his or her final wishes. Since not all states recognize them and for the states that do, it can take some legal work to prove that they were valid, they are not recommended. Another type of will is a “nuncupative” will which involves the testator’s last wishes spoken in the presence of at least two witnesses. These wills are often referred to as “deathbed” wills since they are normally made if the individual anticipates dying soon. They can be very tricky to prove, as well, and require the witnesses to put the testator’s wishes into writing and immediately submitting them to probate court to prove their validity.
Last Will and Testament Sample
Every will is unique, but for the most part, many last wills and testaments include the following sections:
- A provision revoking all prior wills and codicils;
- Marital status;
- Current children living at the time the will is executed, as well as a definition as to what the term “children” includes;
- Listing executor, as well as successor executors in the event the first executors are not able to serve or are deceased;
- A list of the powers of the executor, as well as the person’s duties regarding dividing assets and property, paying all debts and outstanding taxes or liabilities;
- Instructions regarding how the estate will be divided;
- Inclusion of what is known as a “wipeout provision,” meaning if all beneficiaries predecease the testator, where will the property be distributed;
- Instructions for minor children, listing who will be the guardian for these children as well as who will control the property of the children until they reach the age of majority;
- Legal provisions including what individuals will be omitted as a beneficiary, what will happen in the event the estate is not sufficient to meet all of the bequests listed in the will, a no contests provision, and a severability provision;
- Signature of the testator, including name printed and date;
- Names and signatures of two disinterested witnesses.
A notary is not always provided, but many times, an affidavit where a notary witnesses the testator’s signature can make proving the validity of the will much smoother.