Last Will and Testament
A Last Will and Testament is a document prepared during life that delineates several after death instructions for your heirs and loved ones. The main benefit of a Last Will and Testament is that it will give instructions as to how you want your assets distributed. We generally use this document to also list a Personal Representative (Executor or Executrix), who will be charged with following the instructions in your Will, with making funeral arrangements, and with paying expenses and creditors. We will also generally use this document to nominate any persons we would like to be the guardians of minor children should you pass away and have children under the age of eighteen.
There are many options available with your Last Will and Testament. These can be used as the focal point of your Estate Plan, though they may not allow for the same probate avoidance that can be achieved with trust plans. Wills may also be used in tandem with a Trust-based estate plan. In this scenario, we would call the Will a Pour-Over Will, and the Will would direct that any property that was not funded to the trust be put in the trust when the Trustmaker passes away. Assets would then “pour-over” to the trust at death. However, if we are having to use the will in this fashion, we are likely having to go to probate court.
When a Will is used as the focal point of an Estate Plan, it will usually come with a Personal Property Memorandum. This allows the creator of the Will to handwrite in directions for the Personal Representative to dispose of personal property. The best part of this is that if done correctly, you don’t have to have witnesses or a notary for this portion of the Will. You can fill this out at any time. Our client’s will use this Personal Property Memorandum to pass items of personal property, such as jewelry or family heirlooms that they specifically will want to see go to an individual.
A Will based plan is used in tandem with Beneficiary Designations. When using this type of plan, all assets must be accounted for with a Pay on Death, Transfer on Death, or Beneficiary designation. For example, depending on the value involved, a checking account may need a Pay on Death designation to avoid probate court when you pass away. A Trust-based plan may be a better option depending on your specific wants, needs, and circumstances.
In summary, a Will is only one part of a Complete Estate Plan. It can be used as the focal point along with beneficiary designations, or it can be used in tandem with a Trust based Estate Plan. We generally use a Will to designate a Personal Representative to enact our instructions, pay expenses, and distribute our estate. We also use a will to designate a guardian for minor children, and to dictate where our assets go when we pass away.