A Last Will and Testament (“Will“) is one of the basic legal emergency documents needed by everyone eighteen years of age or over. It is an essential part of any estate plan. Having a Will is part of being an adult. It is often the source of great intrigue and conflict of movies, books, and comedy sketches. Contesting a Will is so common it is a cultural icon.
A Will enables you tp answer ahead of time the questions that will arise upon your death or disability. Your Will avoids extra costs and problems for your survivors that would otherwise be inevitable. Your Will provides many benefits. Depending on your circumstances, and the specific provisions of your particular Will, some of the major benefits may include the following:
● If you have a Revocable Living Trust, your Will is generally not going to directly dispose of your assets. Instead, it will “pour over” your assets to your Revocable Trust. All of the “who gets what” provisions are in the Trust. Your Will is primarily a back up in case you have assets not owned by your Trust at the time of your death. However, it is important to remember that to be effective, your Will must go through a court proceeding called “probate.” For that reason, it is much better to make sure all of your assets are owned by your Trust while you are living, rather than relying on the pour over Will to put them into the Trust after your death.
● Your Will, in conjunction with your Trust, can operate as a succession plan for all of your assets and business holdings.
● Because your Will pours over into a Trust, your property will be disposed of according to your written wishes as expressed in the Trust. You can change your Trust without without having to make a new Will.
● If all your property is in your Revocable Trust at the time of your death, your Will makes it unnecessary for your Personal Representative to file a probate simply in order to have the power to sign tax returns.
● Your Will identifies who you want as your executor or personal representative upon death, thus avoiding legal battles over this issue.
● Your Will specifies who will raise your minor or incapacitated adult children as their guardians and conservators, thereby preventing legal fights over this issue.
● If you become ill or incapacitated, a well drafted Will also identifies who will be your guardian and conservator in the event of your incapacity. This avoids or simplifies guardianship and conservatorship proceedings, which saves money and prevents aggravation.
● Having a Will avoids situations that encourage arguments and lawsuits between your heirs over who receives your property on death.
● Your Will permits flexibility through provisions that allow you to leave personal property – household goods and personal effects – to people you name in the Schedule of Tangible Personal Property referenced in your Will. This list may be made informally if it is in your own handwriting and dated. This gives you the power to update without all the formalities of a Will document or signing ceremony.
● Your Will can provide protection for your personal representative, executor, guardians or conservators against having to post an expensive bond to the court and pay premiums on that bond.
● If you are married, your Will can maximize tax avoidance if you and your spouse die simultaneously.
● Your Will has a protocol to deal with the property you leave to your minor children. The Will gives the children maximum protection while reducing costs.
● To the maximum extent possible, your Will is designed to remain valid and consistent with your wishes even if you divorce, remarry, have or adopt a child, lose your spouse, or move to another state. (Although a change in marital status is always reason to review and update your Will.
● Your Will can prevent your property from going to heirs that are addicted to gambling, alcohol, or drugs. It also encourages these heirs to participate in recovery by paying only for their treatment.
● Your Will discourages disgruntled heirs and disgruntled potential heirs from challenging your Will by disinheriting those who contest your Will in court.
It is prudent to review your Last Will and Testament periodically. People and circumstances change, not to mention the law. It is especially important to review and update your Will if there is a change in marital status, a death of a person named in the instrument, a change in your wealth, birth of a child, or a change in your intent or wishes.
The “Will” in your Last Will and Testament refers to final or very last of ‘what you will’ or what you intend or wish, as in ‘I will do that.’ ’The “Testament” in Last Will and Testament is the same Testament used in the Biblical Old Testament or New Testament, and refers to “testify” or “covenant.” The phrase “Last Will and Testament” is another example of classic lawyer double words (like ‘cease and desist’ or ‘grant and convey’).
A person who creates a Will is called a ‘Testator” when they create the Will (or “Testatrix” for females – although this term is virtually never used anymore). When a Testator dies, they used to be called a “Testate.” Now they are simply called the “Decedent” or something to that effect.
A Will should appoint a Personal Representative. This is the modern gender neutral term for Executor or Executrix. I personally believe the adoption of the term “Personal Representative” was motivated more by the inability to conjugate Latin than by gender issues.
An amendment to a Will is called a “Codicil.”
A Will is a testamentary instrument, which means it is not implemented or given effect until you are dead.
In your Will you may make a Bequest, which is a gift of personal property or a Devise, which is a gift of real property. Person who receives real property under a Will as a “Devisee.”
If you die without a valid Will, you die “intestate.” In this case, the state where you die or own property will generally presume your intent by statute.
A Will is not effective until it is “proved” and a Personal Representative appointed by a Court through a proceeding generally called probate. The Court order appointing a Personal Representative is generally called “Letters Testamentary”.
Leaning is pointless if it does not result in a change in behavior. Call or email for a complimentary initial consultation.
❍ ❍ ❍