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A Last Will and Testament is a legal document that details how a person's assets and property will be distributed after their death. Creating a Will as a part of an estate plan ensures the person making the Will, known as the Testator, will have their wishes followed and that the people closest to them are taken care of. For more information about creating a complete estate plan, please see the guide Estate Planning 101: Estate Documents Necessary for a Comprehensive Estate Plan. People often create a new Will or update their existing Will for the following reasons:
If someone already has a will, they can use this document to completely overhaul their existing Will and replace it. However, if they would like to leave most of their existing Will intact and only make minor changes, a Codicil to Last Will and Testament document can be used instead.
Though they are similarly named, a Last Will is different than a Living Will. A Living Will, also known as an Advance Healthcare Directive is used to specify who will be in charge of making someone's medical decisions if they are no longer able to do so themselves. For more information on this, please see the guide Last Wills vs. Linving Wills.
How to use this document
Use this document to explain how the Testator's estate should be distributed among the people they name. There are several major decisions that the testator must make to accomplish this task.
1. Describe the Testator's Family --
The Testator should note whether they are married and, if so, the name of their spouse, as well as whether they have any children. For the purposes of a Will, children include both those that were born to the Testator as well as those that have been legally adopted by the Testator. This Will also includes a provision so that the Testator's future children, if any, are covered by the terms of this Will. All children should be included in the family description, even if the Testator does not plan to leave them anything in the Will. This way, a Judge can be sure that the Testator meant to disinherit a child and did not mistakenly overlook them in their Will.
2. Appoint an Executor --
The Testator must appoint an Executor in their Will.
The Executor is in charge of making sure that the people the Testator has named as beneficiaries get the portion of the estate described by the Testator. The main requirements of an Executor are that they are an adult 18 years or older and that they have not been convicted of a felony. The person who is the Executor may be named as a beneficiary in the Will. People often choose someone that they are close to and that they trust, such as a spouse or one of their children, to fill this role.
3. Name Beneficiaries --
One of the most important parts of a Will is the Testator naming their beneficiaries.
The Testator may make specific gifts in their Will, naming specific people to inherit specific possessions, property, or cash assets. For example, a mother might make a specific gift leaving her engagement ring to her eldest daughter or a father might make a specific gift leaving $5,000 to each of their children to help them pay for their college education.
In addition to specific gifts, the Testator will also name who will inherit the residue, or remainder, of their estate. The residue includes anything that they have not given away in a specific gift. The Testator will name beneficiaries as well as alternate beneficiaries in case the people they have initially named die before them and are therefore unable to inherit. The Testator can name multiple people to inherit the residue of their estate and may specify what percentage or fraction of the estate each beneficiary will get.
4. Appoint Guardian (for children under 18 years old) --
The Testator has the option of naming a Guardian for their children who are under 18 years old in case the children's other parent is unable to care for them.
The individual appointed as a guardian will be responsible for both the care of the child and the child's financial affairs until they reach 18 years old.
The Will also gives the Testator the option of setting up a trust account for their children so that their inheritance is managed by an adult known as a Trustee until the children reach a certain age, designating people who will care for their pets, and forgiving any debts that may be owed to them. For more information about everything contained in a complete and thorough will, please see the guide Will Writing 101: Essential Facts and Features in a Valid Will.
Once the Testator has completed their Will and thoroughly reviewed it to make sure that their wishes are accurately reflected, the Testator should sign and date the Will in front of three witnesses. The witnesses should also sign the will, attesting that the Testator was of sound mind and had the capacity to make these decisions when they signed the Will. The witnesses should all be 18 years old or older and not named as a beneficiary in the Will. In addition, the Testator should number and initial the bottom of each page of the Will. Finally, the Will includes a page for a notary to notarize to add an extra level of precaution.
Once the Will has been signed and completed, it should be put somewhere for safekeeping, such as in a home safe or or a bank safety deposit box. The Testator may also give copies of the Will to people with whom they are close and that they trust, such as a spouse or their children.
The creation and interpretation of Wills are a matter of state law. Wills are interpreted according to the state court where they are probated by a judge when the Testator passes away. Testators should research the laws in their states or contact an estate attorney if necessary if they wish to find out more about the specific state laws that will govern the interpretation of their Will.
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