The details of your will may depend on your entire estate plan.
A last will and testament is the most critical stepping stone to any estate plan. It needs to explain and make clear the specifics of what you want to happen to your property and other matters when you pass away, but the extent to which it does so will depend a good amount on the kind of estate plan you’ve selected to incorporate.
According to LegalZoom, “A last will and testament, also known simply as a will, is a legal document that provides instructions for what should happen to a person’s assets following their passing. If a person passes away without a will, they are said to be “intestate,” and state intestacy laws govern the distribution of the property of the decedent.”
What kind of plan is it? A will-based plan? A trust-based plan? Your last will and testament will take on a considerably different role depending on the kind of plan you choose.
A Will-Based Estate Plan
Your will offers all the necessary and essential specifics of who will inherit your property with this kind of estate plan. It explains when and how they will inherit, and it needs to name your choice of an executor, typically known as a personal representative. This is the individual that will be entrusted in settling your final affairs and managing your estate during the probate process.
Your will needs to cover these four critical points. It needs to also state which powers you want your executive to have, in addition to addressing a 5th critical point if there are minor children involved. Who will act as their guardian until they reach adulthood if their other parent passes away before you or passes away with you?
A Trust-Based Estate Plan
If you create a revocable living trust, it covers the same four basic requirements that a will does, but the individual responsible for resolving your final affairs will be known as your administrative or successor rather than the executor or personal representative.
Your trust formation documentation will address the assets you have funded in your trust, but you will still require a last will and testament just as a precaution.
You need to transfer ownership of your assets in your trust’s name prior to your passing so your trust contract can manage them If you neglect to fund even one asset in your trust, a will becomes required to “catch” that unfunded asset and place it in your trust when you pass away. This kind of will is known as a “pour over will.”
It provides for any unfunded assets to “pour over” in your trust following your passing during the probate process. After that, the conditions of your trust will dictate what beneficiaries receive this property, too, in addition to how and when they get it.
“Pour over” wills only entail two points. Who manages your assets that weren’t funded in your trust and what powers will they possess in this regard? This would usually be the executor or personal representative designated in your “pour over” will.
As with a standard will, a “pour over” will may also designate a guardian for any minor children if you have them. Your trust documentation can’t accomplish this.
How a Last Will And Testament Works
An individual creates a will while they are still alive, and its instructions are conducted following the individual passing. A will designates a still-living individual as the executor of the estate, and that individual is responsible for managing the estate. The probate court typically overlooks the executor to guarantee that they carry out the wishes defined in the will.
- If parents with children pass away not having a last will and testament, the courts will designate a guardian for their children.
- Creating a will and testament provides you with some control over what happens to your assets following your passing.
- If you pass away without a will, your estate will be settled by the courts, including the allocation of all assets.
- Life insurance policies with designated beneficiaries don’t pass through probate court.
A will and last testament shapes the foundation of an estate plan and is a key factor used to guarantee that the estate is settled in the manner wanted by the deceased. While there might be more to an estate plan than the will, it is the governing document the probate court uses to guide the process of getting an estate settled.
Any assets not already appointed by a beneficiary, like a life insurance policy or eligible retirement plan, aren’t included as probate assets and pass straight to the beneficiaries.
Particularly, a will and last testament directs the court in the allocation of all assets, including who is to get them and how much. It determines guardian provisions for surviving dependents and accounts for any unique circumstances, that may include the care for a special-needs child or an elderly parent.
What Happens with Not Having a Last Will and Testament?
The state you live in when you pass in addition to any other state that you own real estate at the time of your passing will effectively provide a will for you in accordance to the state’s intestacy laws if you neglect to make a will prior to your passing.
The laws vary from each state, and they could cause different individuals to inherit your property if you have ownership of real estate in more than one. The only way to guarantee that your property will go the beneficiaries of your choosing is to leave behind a will that is valid.
Your spouse’s inheritance from you may be restricted to as little as 50% of your estate otherwise. And you would have no control over who raises your children following your passing. A probate court judge will designate a guardian for them if you don’t make your desires known.
It Must be a Valid Will
In either case, whether your will is a straightforward “pour over” will or much more complex, it needs to meet your state’s laws and rules for your will to be valid, or the probate court will not honor it. In this case, the outcome would be the same as if you didn’t have a will at all.
These rules can control some seemingly insignificant things that are nevertheless very important, like how many witnesses you need to have at the signing and precisely how you need to sign. Essentially, most “invalid” wills are proclaimed so for errors in these sections.
An invalid will won’t just eliminate a specific term or inheritance. The complete last will and testament and all its requirements will be thrown out. It’s a good reason to always have your will examined by an attorney if you create one yourself, or to request an attorney create your will for you.
- Garber, Julie. “What Is a Last Will and Testament?” The Balance, The Balance, 31 May 2019, www.thebalance.com/what-is-a-last-will-and-testament-3505185.
- Kagan, Julia. “Last Will And Testament.” Investopedia, Investopedia, 27 Feb. 2020, www.investopedia.com/terms/l/last-will-and-testament.asp.
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