Last Will Basics

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A Last Will and Testament (also simply called a “will”) is a legal document. It is one of the principal documents used in an estate plan. A will states your wishes for your property and minor children for after you pass away. It’s also where you name an executor (or “personal representative”) to be in charge of settling your affairs. Here’s a breakdown of how a will works:

Leaving property

At the heart of most wills is the property distribution section. This is where the person making the will (called the “testator”) states who should receive his or her property. There are many different ways that property can be left in a will, and you can generally leave your property any way you’d like. The major exception is that if you are married, your spouse is entitled to some portion of your assets (the exact portion varies by state law). Other than that, you can leave your entire estate as you please. You can leave everything you own to one person, divide it among several people (equally or in specific percentages), and leave specific items to specific people.

For example, imagine John owns a house and a car. John could create will leaving everything he owns to his brother. Or John could make a will in which he leaves everything he owns to his brother and sister in equal shares, so that John’s brother and sister split the car and house 50-50 (in this case, the will might tell the executor to sell everything and split the proceeds, since it may not be practical for John’s brother and sister to share the house and car). Or if John wanted to be even more explicit, he could state in his will that he leaves his vehicle to his brother, and everything else he owns to his sister. The way John divides his property is entirely up to him.

Backup beneficiaries

In addition, most wills also name backups who will receive property only if a primary beneficiary is not alive at the time of the testator’s death. For example,  let’s say Tina makes a simple will leaving all of her property to her friend Frank. And the will also says that if Frank isn’t alive at the time of Tina’s death, then everything should go to Tina’s other friend, Othelia. Then Tina dies. If Frank is still alive, he gets everything; if Frank is not alive, Othelia gets everything.

Residuary clause

A good will also includes a catch-all provision for any property not specifically mentioned in the will. This is known as the “residuary clause”. The residuary clause ensures that all property has a beneficiary. Here’s an example: Karen owns a house and a car. She makes a will leaving the house to her husband and the car to her daughter. Later, Karen buys a boat but forgets to update her will. Who should receive Karen’s boat? Her husband or her daughter? Without a residuary clause, it’s left up to state law. However, if Karen had a residuary clause in her will that says “I leave everything else to…”, she would specifically name who should receive any property that was not specifically named (in this case — the boat).

Choosing guardians

Choosing guardians for minor children is an extremely important function of a last will and testament. A guardian is responsible for caring for a minor child if no parent is alive or able to do so. There are two kinds of guardianship: a personal guardian who cares for and has custody over the minor child personally, and a property guardian who is in charge of any property left to the minor child (until the child becomes an adult). Personal guardianship and property guardianship can be done by a single person or by different people. For instance, if one relative is the best person to raise the child, but a different relative is the best person to manage money and other property left to the child, it could make sense to split the roles. A good last will specifies personal and property guardianship, and also provides backups in case the primary guardian(s) are unable to serve when the time comes.

Anyone who has a minor child should name guardians. This is true even if there are two parents in the picture, because it’s possible for both parents to die at the same time. Choosing guardians can take some serious discussion between parents, guardians, and even the minor children. Still, it’s critical and fulfilling to carry out this responsibility. It can have an enormous impact on the child’s life, and most people wouldn’t want a court making the decision for them.

Choosing an executor

When someone dies, even if there is a last will and testament, property isn’t automatically transferred to the new owners, and debts aren’t automatically paid. Someone is in charge and does all of this work. This person, called the “executor” or “personal representative”, represents the estate. He or she will work with the probate court to gather and inventory estate assets, settle estate debts, and then distribute assets.

It all happens manually through the probate process, which is a legal process that takes place in a local probate court, in the county where the deceased person lived. An executor works with the probate court to carry out the probate process, including carrying out the terms of the testator’s will. During the process, the executor works under the supervision of the probate court to settle the financial and other obligations of the deceased person, and to distribute property.

Choosing an executor is an important part of estate planning.  An executor should be someone who’s trustworthy, organized, and who will have the free time to manage the cumbersome probate process. Many people choose their spouses or a particularly responsible close family member. It’s simply a personal decision.

If you do not name an executor in your will, your local probate court will choose one for you based on state law. Remember, this person will have access to your property and might have some discretion regarding your estate. So, it’s really worth taking the time to plan and make the decision for yourself —  don’t leave it up to the probate court to decide for you.

Legal requirements of a will

The testator: In order to make a will, a person must meet certain requirements . While the exact requirements vary by state, they are pretty similar across most states: a testator must be of legal age (usually 18 years old) and of “sound mind” (having an understanding of one’s actions). This means that a will created by a minor child, or by an adult who has dementia, would not be valid or legally binding.

In addition, a will is not valid if it is created through “undue influence” or if the testator is under “duress.”

Undue influence occurs when a testator is manipulated into making a will by someone who has some kind of power or influence over the testator. For example, it would be undue influence if a nurse persuades her elderly patient into signing a will that excludes the patient’s family and leaves everything to the nurse. In this case, it’s too questionable whether the testator really acted out of his own free will — he’s likely just been manipulated by someone with whom he has regular contact and who has power over his physical treatment.

Duress is when a testator makes a will under threat of force. An extreme example of duress is someone being held at gunpoint and forced to make a will.

Signing: A will must be signed according to state law in order to be valid. If a will is signed improperly, usually it’s as if there was no will at all.

The exact requirements for signing a will vary by state. However, most states require that the testator sign in the presence of two witnesses, who must also sign the will in the presence of the testator.  The role of the witnesses is to “authenticate” the testator — that is, to provide evidence that the will was indeed signed by the person it says it was signed by.

It is best practice for a will to include a “self-proving affidavit”.  In a self-proving affidavit, the testator and witnesses swear before a notary public (or other officer of the court) that the will was signed by testator and witnesses as indicated on the document.  When it comes time for a probate court to determine the validity of a will, the self-proving affidavit is submitted along with the will (it’s usually just a part of the will), and it replaces the need for the witnesses of the will to appear in court and testify regarding the execution of the will.

Carrying out a will

A will doesn’t get filed until after the death of the testator. In order for a will to be carried out once the testator has died, someone has to actually find the will and submit it to the local probate court. Generally, this is done by the executor. It’s a good idea to store your will in a safe place and tell your executor and/or other loved ones where they can find it. This way, it can be accessed and submitted to the court when the time comes.

A will gets approved as part of the probate process. The probate process begins with submitting to the local probate court a package of paperwork including a death certificate, the original last will and testament, and a number of other legal documents, including a request for someone to be formally appointed as the executor.

Once submitted, the will must be approved by the court. If there is no self-proving affidavit, the probate court will require the witnesses to appear in court and confirm they saw the testator sign the will properly. If the witnesses are unavailable, it can really slow things down. If there is a self-proving affidavit, the court will consider the will to be “self-proved”, and the witnesses won’t need to appear in to court. A self-proving affidavit can save your executor, witnesses, and loved ones a lot of time, money, and hassle.

Once formally appointed, the executor will work with the probate court to settle the testator’s estate. This includes satisfying any debts or other obligations and then carrying out the other instructions of the will — mainly gathering and distributing property.

Do I need a will?

Having a valid last will and testament is important for all adults — not just for rich people, and not just for older people. Whether you have a little or a lot, a will can save your loved ones from uncertainty and disputes about what you would have wanted. Of course, wills are also extremely important when it comes to deciding who will be the guardians of your minor children and their property.

Dying without a will

If you die without a will, the government basically decides everything for you. State law determines who will receive your property, and a court chooses who will care for your minor children. As the legal process runs its course, strangers — rather than family members — could have control over your property and children.

Do I need an attorney?

No. An attorney is not required to make a will. For the the vast majority of people, an attorney will simply do the same things that software does — ask you questions and then create documents for you based on your information and wishes. However, in certain situations you should probably seek legal advice from an attorney, like if you have a child with special needs, or if you have a high net worth (around $10 million) and are concerned about federal estate taxes. In these cases, an attorney can help you create a specialized plan.

Do I need an estate plan?

A will is a great start, but it is only one part of a complete estate plan. An estate plan should also include planning for events before death, as well as keeping property out of the long, expensive probate process.

Planning for events before death includes answering questions about healthcare and financial matters. If you are incapacitated and unable to make decisions for yourself (for example, if you’re hospitalized and unconscious), decisions need to be made about what kind of treatment you can have. With a “living will”, you can make important health care decisions in advance, and also appoint someone to make these decisions for you. With a “power of attorney”, you can give someone the authority to access your property — for example, if money needs to be withdrawn in order to pay for special medical treatment, or even just to keep up with your regular bills.

The best estate plans avoid the probate process altogether. Probably one of the most common estate planning mistakes is thinking that a will avoids probate — wills do not avoid probate. But probate can be avoided in a number of ways, and a single estate plan may make use of several different ways.

The estates of most people include some financial accounts, a home, and some household items. Household items can usually be handled informally among family members, as they do not have formal, documented ownership. That leaves the financial accounts and the home. Keeping your property out of probate can save your family months (or even years!) and thousands upon thousands of dollars.