Last Will & Testament Basic Information
When you feel it’s time to start planning your estate, you should start by creating a Last Will & Testament. This legally-binding document is vital to ensure your final wishes concerning your estate and funeral arrangements are honored.
What you need to do when creating a will:
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Learn the basic parts of a will
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Understand the process
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Select an executor
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Choose a legal guardian for children
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Assign property and assets to beneficiaries
Anatomy of a Will
A legally-binding Last Will and Testament includes the following:
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Declaration
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Executor
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Guardian(s)
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Beneficiaries
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Bequests
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Funeral Arrangements
Declaration
The declaration section states your reason for creating a will. This section also includes basic identifying details and a statement providing legal proof that this will was made in sound mind.
Bequests
The bequests section is where you discuss the estate and which items or assets are granted to each beneficiary.
Executor
An executor is the person responsible for carrying out the instructions of the will — distributing assets, taking care of any debts against the estate, and working with the probate court throughout the process.
Because the executor is responsible for handling sensitive personal and financial information, the appointed person should be someone you trust completely.
Make choosing your executor one of your first actions when you create a will. If you do not specify an executor, the Probate Court will make that decision for you after you pass.
Guardians
We all hope that our children will be legal adults when it’s our time to pass, but wills are all about planning for the unexpected. Be prepared by making sure that your children will be taken care of. Choosing a legal guardian is not a light decision, especially since this person will also be in charge of whatever part of your estate that you leave to your children.
Beneficiaries and Assets
The distribution of your estate is the main thing most people think about regarding a Last Will and Testament. You can name any person or organization as a beneficiary in your will.
You can divide and bequeath your estate in any way you choose. You can give specific items to beneficiaries, or leave a percentage of assets to different loved ones. If you choose to divide real property among multiple beneficiaries, you may also need to provide the executor with instructions on how to carry out those wishes.
Catch-All Clause
Consider including a residuary clause in your will to catch any assets and items not explicitly distributed to your beneficiaries. This simple clause acts like a net to ensure that nothing is overlooked and may help deter possible arguments and legal red tape.
The Legal Requirements
Although your Last Will and Testament is customized for your wishes, you must still adhere to a few legal requirements:
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You must be a legal adult (at least 18 years old) and of sound mind
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You must sign the will in front of at least two witnesses
Your will may not be considered legal if there is any proof that you signed the document under duress or by undue influence. “Undue influence” is being manipulated or pushed into making a decision without considering the consequences or without the freedom to refuse the demands of the other party. The document may also be considered invalid if there is any evidence that you were not of sound mind at the time you signed the will.
You may want to include a Self-Proving Affidavit with your will. This is a legally binding and notarized document that verifies all signatures in the will for the Probate Court.
The Process
After your death, your executor or attorney files your will with a Probate Court. The court then officially appoints your executor, who can begin handling their responsibilities regarding the estate. If the will does not include a self-proving affidavit, the witnesses must verify their signatures before the court.
Estate Planning Q&A
Do I need a will?
Yes. Everyone should have a will. Even if you don’t think you have many assets to disperse, a will can also include your funeral instructions and the appointment of a legal guardian for your children. If you do not create a will before you pass, a Probate Court will take control of your estate and make its own decisions.
Do I need an attorney to prepare my will?
An attorney is not legally required to create a Last Will and Testament. If all you want to do is bequeath a few assets to specific people and ensure your children are taken care of, you probably won’t need a lawyer.
However, hiring an attorney might be a good idea for more complex cases. If you have a large estate that includes real property and assets, you may want to seek legal counsel to ensure that your wishes are clearly explained. An attorney can also help navigate the minefield of inheritance tax laws. The US government does not tax an inheritance until it reaches a significant amount, which periodically changes, but is always in the millions.
What is an estate plan?
An estate plan includes several critical legal documents — Last Will and Testament, Living Will, Power of Attorney, Advance Directive, and Living Trust. An estate plan protects your interests and ensures that your instructions are followed both before and after death.