Wills ensure your personal property, real estate, bank accounts, insurance policies, assets, money, and gifts are passed on.

A will, also called a “last will and testament," is a legal document that specifies a person's wishes for asset distribution after death. Without a will, a person would die “intestate," and their assets would pass to others according to state law.

This section provides information on how to create a will, why you need one, the types of wills, and what to do when there is an issue with an existing will.

What Is a Will?

A will is an estate planning document with no legal effect until the will's maker, the testator, dies. Upon the testator's death, probate will involve proving that your will is legally valid in probate court, executing your instructions, and paying applicable taxes.

A will can help ensure the beneficiaries receive the assets according to your wishes. These assets may include the following:

  • Real estate
  • Bank accounts
  • Insurance Policies
  • Cash
  • Personal property

A simple will designation leaves these items to loved ones such as minor children, adult children, a surviving spouse, or other family members. But certain assets, such as a life insurance policy, may pass outside the probate process through beneficiary designations.

Beneficiary designations allow you to transfer certain assets after your death without giving the beneficiary any ownership during your lifetime. Typically, you can fill out the forms on your own. Making designations for beneficiaries is a powerful estate planning tool to pass assets to your loved ones following your death. It is wise to take the time to work with an estate planning attorney on estate planning documents. Getting legal advice on your estate plan can bring peace of mind to you during your lifetime and comfort to your loved ones following your death.

Even with a comprehensive estate plan, challenges can arise. But working with an experienced estate planning lawyer can reduce the risk that these complications will derail your wishes to distribute your assets following your death. Typical issues include going to probate courtchallenges to your will, or asset sales to cover debts.

What To Know About a Will

It's important to understand how a last will and testament fits into your comprehensive estate plan. It's also important to know what a will cannot do to ensure your estate planning documents reflect your intentions.

It can be helpful to know the following:

You will also have the choice to name someone as the executor of your will (sometimes called a personal representative).

If you cannot, you can also give someone “power of attorney" to help you make decisions.

Your will can also create a testamentary trust in a will. The final will must contain the testamentary trust. The testamentary trust should state which assets will enter the trust, i.e., real estate, life insurance, bank accounts, all assets, etc.

Creating a will can feel time-consuming and intimidating initially, but remember that you have resources to help you.

The Basics of a Last Will and Testament

Wills are the most common and well-known estate planning document. A valid will allows a person to designate how their estate is distributed and otherwise managed upon death.

A person who creates a will, a testator, can have peace of mind knowing that the will's instructions will be honored. But, a person who dies without a will (called intestacy) doesn't have this security.

Without a will, a probate court or other estate administrator makes decisions about your estate. Further, you can plan for a guardian if you have minor children or care for those with special needs. Otherwise, the decisions made by others may not reflect your wishes.

Unfortunately, the failure to create a will can also lead to disputes between family members, expensive lawsuits, and relying on the application of intestate succession rules to determine the disposition of your property.

Choosing Someone To Carry Out Your Will's Instructions

Selecting an executor, also called a personal representative, is one of the most important decisions you will make during the estate planning process. This person will serve as a trusted fiduciary for the estate and is expected to carry out the instructions or requests contained in your will.

The executor carries out the instructions in your will. The personal representative will carry out tasks to ensure that the beneficiaries you select will receive the assets you want them to receive upon your death. A beneficiary can be an executor. They can also be a friend or other family member. In the most common scenario, the executor is a beneficiary.

What Makes a Will Legally Valid?

Estate planning laws vary by state, so it's best to consult with an estate planning lawyer if you have specific questions about your state's laws.

In general, a person must have been of "sound mind" when they executed the last will and testament. This means the person:

  1. Understood the effects and consequences of the will, and
  2. Voluntarily signed the will

It is not uncommon for beneficiaries to end up in probate court for a will contest relating to whether the testator was of sound mind when they executed the will.

Typically, at least one witness is required to verify the last will and testament at its execution. It's best if the witness is not a beneficiary under the will. In some states, a will can also include a self-proving affidavit. A self-proving affidavit ensures that an executor will not have to provide additional evidence in probate court to prove the will's validity.

Wills are usually in writing, but oral wills can be valid. And some courts have upheld digital or electronic wills. A handwritten will, called a “holographic will," can be valid in some states. In most cases, wills are typed documents based on a template for your state. If you ever wish to change your will, codicils can be used to document those changes. In most states, codicils undergo the same execution process as the will.

Limitations When Creating a Will

A valid last will and testament must comply with all applicable laws; it cannot violate laws. For example, a person cannot ignore a state's community property marriage laws. You could write your will claiming your spouse is not entitled to any property. However, a community property state will disregard any will provision stating that your spouse is not entitled to any property. Your spouse would receive any legal “community" property to which the spouse is entitled under state law.

Additionally, some states have passed heirship laws. Heirship laws require children to be listed as heirs in a decedent's will. A will that fails to account for heirship laws will not stand up in court. In such cases, the decedent (person who passed away) may be considered intestate (dying without a valid will).

Other Essential Estate Planning Documents

The last will and testament is a starting point for anyone working through their estate plan. This legal document is the foundation of estate planning, stating how you want your assets distributed when you die. But a comprehensive estate plan contains additional legal documents.

Other legal documents are necessary to protect you in different circumstances. These estate planning documents can be useful during your lifetime.

Living Will

living will is known by several names, such as a healthcare directive, healthcare proxy, or healthcare power of attorney. A living will is a legal document that explains your wishes regarding medical treatments, medical decisions, and end-of-life medical care. It only comes into play if you cannot make health care decisions on your own. This document lets your loved ones and healthcare providers know your wishes regarding your medical treatment.

It is important to note that each state has different rules regarding estate planning. Thus, the names of the documents, and the features of the documents, may differ depending on the state law.

For example, a health care advance directive can combine a living will and a durable power of attorney for health care under state law in some states. Thus, the healthcare planning documents drafted in New York City may differ from those in Houston, Texas. A local estate planning attorney can provide legal advice on the specific documents you need.

Power of Attorney

power of attorney grants someone to act on your behalf. The person you appoint is your “attorney-in-fact" or your “agent." Although called an attorney-in-fact, this person does not have to be an attorney. A power of attorney is a legal document that gives your agent the legal authority to decide on business matters and other issues on your behalf. A general power of attorney can have a broad range of power depending on your needs.

A durable power of attorney is a type of power of attorney. A durable power of attorney is effective when you sign the legal document. Your agent has the powers outlined in the legal document when in effect. Unless you revoke the powers, the agent retains those powers, even if you become incapacitated, until your death.

Living Trust

The legal document known as a trust comes in many forms. A living trust is created while the grantor is alive. A living trust is a legal arrangement in which a grantor transfers property to a trustee to manage for the benefit of a beneficiary. With most revocable living trusts,

A revocable living trust allows the grantor to change or revoke the terms of the trust. The trustee holds legal title, but the grantor retains some control over the trust assets. Due to the flexibility of the living trust, it is attractive to grantors. Avoiding the probate process and minimizing estate taxes are common reasons a living trust is part of many people's estate plans.

Even when your estate plan includes a living trust, you should still consider having a last will and testament for assets not put into the living trust. Any assets not in your living trust remain part of your estate.

How an Attorney Can Help

Working with an estate planning lawyer with years of experience can bring great peace of mind. You will get your questions about wills and other estate plans answered. An experienced estate planning attorney can also explain applicable laws and help you create a comprehensive estate plan that fits your needs and reflects your intentions. It's prudent to seek legal advice from an experienced estate planning attorney in your area. You can consider a DIY will form if you have a simple estate.

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