What Is a Last Will and Testament?

Definition and Examples of a Last Will and Testament

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A last will and testament is an estate-planning document that explains and clarifies what you want to happen with your property at the time of your death, among other things. Your will provides all the essential and necessary details of who will inherit your property.

It can't necessarily address all the property you own, however, and you have other estate-planning options. A 2020 study by Caring.com indicates that 70% of those surveyed felt that having some type of estate plan is important, but the number who have actually created one dropped 12% from the 2019 study. It can help to understand what will happen to your estate with a will versus without one.

What Is a Last Will and Testament?

A last will and testament is a legal document that explains when and how your beneficiaries will inherit your property and assets. It should also name your choice of an executor, sometimes called a personal representative. This is the individual who will be in charge of settling your final affairs and guiding your estate through the probate process.

The probate process is required to move ownership of many of your assets to a living individual. Not leaving a will won't avoid it unless you've formed an alternate estate plan, such as a living trust.

How Does a Will Work?

A will can cover several issues. It should name your primary beneficiaries, such as that you want your brother Joe to inherit your classic car. But it should go one step further and state who receives the car if Joe should predecease you.

A will should also state what powers you want your executive to have when settling your estate, as well as name a guardian to care for your children until they become adults if their other parent predeceases you or dies with you in a common event. It can also name a conservator to manage any assets or cash you bequeath to your children, because minors cannot own property.

A will can only deal with your probate assets, however—items of property you own that have no other way of passing to a living individual without the probate process. Life insurance benefits, real estate held by joint tenants with rights of survivorship, and many retirement plans name beneficiaries directly. These non-probate assets will pass to those individuals outside by process of law.

A beneficiary designation on an asset will prevail even if you attempt to transfer non-probate assets to a different beneficiary in your will than the one named on the asset.

Types of Wills and Estate Plans

A revocable living trust is another estate-planning mechanism that will cover the same basic provisions as a will, but the person in charge of settling your final affairs would be called your successor trustee rather than an executor or personal representative.

You must transfer ownership of your assets into your trust's name after you've formed it and before you die so the terms of your trust and your trustee can deal with them. A will becomes necessary to "catch" any property you own that hasn't yet been funded into your trust so it can be transferred into your trust when you die. This type of will is called a "pour-over will."

Your trust formation documents will address the assets you've funded into your trust, but you can back them up with a last will and testament to be on the safe side.

This pour-over of assets into your trust requires the probate process, but then the provisions of your trust will determine what beneficiaries get this property, as well as how and when they should receive it.

A pour-over will covers two basic points: It names an executor to take charge of the assets that were not funded into your trust, and it directs that individual to fund them into your trust.

A pour-over will can also name a guardian for your minor children if you have any. Your trust documents can't achieve this. The court will appoint a guardian and conservator for your children if you fail to name anyone in a will, and this might not be an individual you'd prefer.

Requirements for a Will

Will requirements are set by state law, and you must meet your state's requirements whether you're making a simple pour-over will or a more complicated one. It must meet the requirements for a valid will or the probate court won't honor it. The result would be the same as if you hadn't left a will at all.

These rules typically govern how many witnesses you must have to the signing of your will and exactly how you must sign the document. In fact, many "invalid" wills are declared void for errors in these simple areas.

Making an error won't just eradicate a specific term or bequest. Your entire last will and testament and all its provisions will be thrown out. Always have your will reviewed by an attorney if you write one yourself, even if you use estate-planning software, or have an attorney draw up your will in the first place.

You must additionally have reached the age of majority in your state to be able to leave a last will and testament—minors can't do so. You must be of sound mind. And no, you cannot disinherit your spouse.

You can't use a last will and testament to coerce a beneficiary into taking some action, whether it's illegal or just something you believe to be in their best interest, such as graduating college. You can disinherit your adult children unless you live and die in Louisiana.

Some states allow you to include a "no contest" clause in your will, also sometimes referred to as an "in terrorem" clause. It basically says that if any of your beneficiaries unsuccessfully contest your will, they'll lose even the inheritance you did leave them. Check with a legal professional to find out if your state allows this before you include one.

Do I Need a Will?

The state you live in at the time of your death, as well as any other state where you own real estate at the time of your death, will effectively provide a will for you according if you fail to make one before you die, or if your will is declared by a court to be invalid. State intestacy laws will determine who gets your probate property.

Your spouse's inheritance from you could be limited to as little as 50% of your estate if this happens. Intestate laws of succession generally divide your assets between your spouse and your living descendants only. Parents and siblings might not inherit anything from you at all if you don't leave a will and if you're survived by a spouse and children.

Key Takeaways

  • A last will and testament is a legal document that tells survivors who you want to receive your assets at the time of your death.
  • A will can also name a guardian for your children, a conservator to handle your children’s inheritances until they reach the age of majority, and an executor to handle your estate through the probate process.
  • Wills can only transfer probate assets. They can't bequeath assets that have a beneficiary designation, such as life insurance proceeds, retirement accounts, or real estate titled to joint tenants with rights of survivorship.
  • You’ll still need a “pour-over” will even if you create and fund a living trust as the basis of your estate plan.

Article Sources

  1. Caring.com. "2020 Estate Planning and Wills Study." Accessed July 24, 2020.

  2. Executor.org. "What is Probate Court? 8 Steps to Probating a Will." Accessed July 24, 2020.

  3. HG.org Legal Resources. "What Are the Requirements of a Valid Will?" Accessed July 24, 2020.

  4. HG.org Legal Resources. "What Are Wills and Testaments?" Accessed July 24, 2020.

  5. Cornell Law School Legal Information Institute. "No-Contest Clause." Accessed July 25, 2020.

  6. American Bar Association. "Introduction to Wills." Accessed July 24, 2020.