What Is a Last Will and Testament, and Do I Need One?

What first comes to mind when you hear the term estate planning? Like most people, you probably think of a will, also known as a last will and testament. Though many important documents constitute an estate plan, the will is a central feature. But what is a will and why is it so important?

A will serves as a blueprint for distributing what you own, appointing guardians for minor children, and addressing other final wishes upon a person’s death. Understanding the different types of wills, their uses, and the processes involved in drafting and executing them can ensure that your intentions are honored while reducing potential conflicts among your loved ones.

What Is a Last Will and Testament?

A last will and testament is a legal document that outlines how a person’s assets and responsibilities will be handled after their death. A man who executes a will for his estate is known as a testator and a woman is known as a testatrix. A will typically clarifies the following:

• Appointment of an Executor: Designates a person to manage the estate, settle debts, and ensure that the will’s instructions are carried out.
• Distribution of Assets: Specifies who will inherit property, money, and personal belongings.
• Guardianship of Minor Children: Names a trusted individual to care for any minor children.
• Charitable Bequests: Includes donations or contributions to charitable organizations.
• Final Wishes: May outline preferences for funeral arrangements or burial. (However, note that a will is not necessarily the best place to include these instructions.)

A valid will provides legal clarity and reduces ambiguity, making it easier for family members and loved ones to manage affairs during a difficult time.

Types of Wills

There are different types of wills, each serving a specific purpose. Here are the most common types and when they are typically used.

Simple Will

A simple will is the most straightforward type of last will and testament. It is used by individuals with uncomplicated estates to specify asset distribution, appoint an executor, and name guardians for minor children. A simple will is best for people with minimal assets or uncomplicated family dynamics.

Many people believe that they do not have sufficient assets to warrant creating a will. However, in addition to naming a guardian for your minor children and making it easier for your loved ones to administer your estate, the benefits of executing a will can also include helping those you leave behind gain access to your digital assets, such as your social media accounts, photo albums, and any essential digital documents.

Pour-Over Will

A pour-over will is used when a person has a trust, such as a revocable living trust, that they want to hold their assets during and after their lifetime. The pour-over will acts as a safety net for assets not explicitly included in the trust during the person’s lifetime. After the person’s death, the pour-over will directs all the person’s assets that are outside the trust into the trust so they will be distributed per the trust’s terms.

Learn more about pour-over wills in a related article.

Joint Will

A joint will is a single document created by two individuals, usually spouses, that outlines how their assets will be distributed. This type of will may be useful for married couples with mutual beneficiaries and aligned estate plans. However, after the death of one spouse, the will typically becomes irrevocable, which means that the surviving spouse cannot easily change it.

Mutual Will

Similar to a joint will, mutual wills are created by two parties, usually spouses. They are separate documents but mirror each other. These wills often include agreements that neither party can alter their will without the consent of the other.

Mutual wills may be used, for example, by couples in blended families who want to ensure specific distributions to heirs. However, not all states recognize these types of wills as binding contracts.

Holographic Will

A holographic will is handwritten and signed by the testator without the presence of witnesses. Though legally recognized in some jurisdictions, these wills are more likely to be challenged due to questions of validity or clarity. In certain cases, this type of will can be used in emergencies or situations where formal drafting is not possible. When the Queen of Soul Aretha Franklin died, her relatives found a will handwritten by Franklin, which led to a lengthy court battle among family members.

Oral Will

An oral will, also known as a nuncupative will, is spoken rather than written. These are typically only recognized under specific circumstances, such as when a person is on their deathbed. Like a holographic will, an oral will may be more suitable in emergency situations where written documentation isn’t feasible.

Living Will

Though a living will has the word “will” in its name, it is not a last will and testament. A living will is an important document that outlines a person’s wishes for medical care if they lose capacity and are unable to make or communicate these types of decisions.

It is often accompanied by a durable power of attorney for health care decisions. This common estate planning document is important for those who want to ensure their health care preferences are honored in the event of serious illness or injury.

A Note on Testamentary Trusts

A testamentary trust establishes one or more trusts that come into effect upon the testator’s death. It’s often used to manage assets for minor children, disabled dependents, or beneficiaries who might require financial oversight. This type of trust is a part of your will and may be best for individuals with significant assets or dependents needing long-term care or financial management.

Why It Is Important to Have a Will

If you die without a will, the probate court will choose an executor to administer your estate and will determine how your estate is administered. This means that your assets may get distributed in ways you don’t want by someone you wouldn’t have chosen.

Such a situation may heighten tension within your family and lead to conflict. If you have minor children, they may end up living with relatives you would not have chosen to raise your children. Other preferences you have may not be accommodated.

Changes in your life can necessitate the creation of a will or the updating of an existing will. Creating or updating a will when getting married or divorced allows you to outline what you desire for the distribution of your assets. A will allows parents to choose a guardian for minor children they create or adopt in the event both parents die or otherwise become unable to care for the children.

For those with blended families, a will can allow for the fair and equitable distribution of assets. When acquiring significant property, business interests, or other investments, a will can allow you to distribute these assets according to your wishes. Chronic illness or advancing age underscores the importance of having a will in place to provide clarity and peace of mind.

How to Create a Last Will and Testament

Creating a legally binding last will and testament involves several key steps:

• Inventory Assets: List all assets, including real estate, bank accounts, investments, personal belongings, and digital assets.
• Choose Beneficiaries: Decide who will inherit specific assets and in what proportions.
• Select an Executor: Choose a responsible individual to administer the estate and ensure the will’s terms are carried out.
• Name Guardians for Minor Children: Designate trusted individuals to care for any minor children.
• Consult an Attorney: Though do-it-yourself options exist, consulting an estate planning attorney ensures that the document complies with state laws and addresses all relevant concerns.
• Sign and Witness the Document: Most jurisdictions require the testator to sign the will in the presence of at least two witnesses who are not beneficiaries.
• Store the Will Safely: Keep the original will in a secure location, such as a safe deposit box, and inform the executor of its location.

The Role of an Executor

The executor plays a key role in administering the estate. The executor, sometimes known as the personal representative, must first submit the will to the appropriate probate court to begin the legal process of estate administration. After the court recognizes and orders the executor to administer the estate, the executor must create an inventory of the deceased’s assets and determine their value. The executor will then pay outstanding debts, bills, and taxes. And, finally, the executor distributes the remaining assets to the designated beneficiaries.

Challenges and Disputes

Sometimes a dispute will arise, leading to someone challenging a will. In some cases, beneficiaries or excluded parties may challenge the validity of a will, alleging undue influence, fraud, or lack of capacity. Sometimes poorly worded provisions in a will can lead to misinterpretations and conflicts. Often, family members who are intentionally or unintentionally left out of a will may contest it.

Updating or Revoking a Will

Changes in one’s life, such as marriage, divorce, a move to another state or country, the birth or adoption of a child, or the death of a beneficiary, necessitate changes to a will. There are a few ways to update or annul a will.

Codicils

A codicil is a legal amendment to an existing will. It must be signed and witnessed in the same way as the original document. After creating a codicil to a will, it should be kept with the original will.

Drafting a New Will

If a person wants to make numerous changes to their will or if they have already made changes by creating several codicils, it may be simpler to draft a new will. Creating a new will automatically revokes any previous wills. Still, it is a good idea to state clearly in the new document that all prior wills are void.

Revocation

A will can also be revoked by physically destroying it, for example by tearing or burning, or by drafting a new will.

Avoiding the Probate Process

If you don’t have a will or if you have only a will (not a trust), your estate will have to go through the probate process. Some people want to avoid the probate process so that their assets will get distributed more quickly or to keep the process out of the public record. By creating a trust in conjunction with a pour-over will, you can keep most or all of your assets from going through the probate process.

Some assets, such as retirement accounts and life insurance policies, are able to pass to their beneficiaries without going through the probate process because their beneficiaries are designated in advance. When you consult with your estate planning attorney, be sure to let them know about all of your assets so that you can set them up to distribute to the intended beneficiaries.

Expert Help With Your Estate Planning

A last will and testament is a vital part of your estate plan. It ensures your final wishes are respected and your assets are distributed according to your preferences. By working with an experienced estate planning attorney near you, you can rest assured that your accounts and property will be passed along according to your wishes and that you will leave a meaningful legacy.

For additional reading about last wills and testaments in estate planning, check out the following articles:

• Do You Need a Lawyer to Write a Will?
• How to Make Changes to Your Will
• What Happens If You Die Without a Will?
• 8 Frequently Asked Questions on Last Wills and Testaments
• Without a Will, You're Putting Your Kids at Risk
• What Is the Difference Between a Will and a Trust?