Key Takeaways
- A last will and testament is a legal document that dictates who you want to receive your assets after your death.
- A will may also name a guardian for your children, a conservator to manage your children’s inheritances until they reach the age of majority, and an executor to manage your estate through the probate process.
- Wills can only transfer probate assets. They cannot claim assets that have a beneficiary designation, such as life insurance proceeds, retirement accounts, or real estate titled to joint tenants with survivorship rights.
- You’ll still need a “pour-over” will even if you create and fund a living trust as the basis of your estate plan.
Definition and Example of a Last Will and Testament
A last will and testament is a legal document that explains how your beneficiaries will inherit your property and assets. It should also name your choice of an executor, sometimes called a “personal representative.” This is the individual who will be in charge of settling your final affairs and guiding your estate through the probate process.
Your will should name your primary beneficiaries and what they are to receive from your estate. If you want your brother Joe to inherit your classic car, he should say that. But you should go one step further and state who would receive the car if Joe were to precede you.
The probate process is necessary to move ownership of many of your assets to living individuals. Not leaving a will won’t avoid it unless you’ve formed an alternate estate plan, such as a living trust.
How Does a Will Work?
A will should also state what powers you want your executor to have when settling your estate. You should name a guardian to care for your children until they become adults if their other parent precedes you or dies with you in a common event. It may also be necessary to appoint a conservator to manage any assets or cash that belong to your children, because minors cannot own property.
A will can only deal with your probate assets. These are items of property you own that have no other way of passing to a living individual without the probate process. Life insurance benefits, real estate held by joint tenants with survivorship rights, and many retirement plans name beneficiaries directly. These are non-probate assets, and they will pass to those individuals outside of your will by process of law.
Note
A beneficiary designation on an asset will prevail even if you attempt to transfer non-probate assets to a different beneficiary in your will from the one named on the asset.
Another Type of Will
A revocable living trust is another estate-planning mechanism that will cover the same basic provisions as a will. You must transfer ownership of your assets into your trust’s name after you’ve formed it, and before you die, so that the terms of your trust and your trustee can deal with them.
It will become necessary to “catch” any property you own that has not yet been funded into your trust so that it can be transferred into your trust when you die. This type of will is called a “pour-over will.”
Note
Your trust formation documents will address the assets you’ve funded into your trust, but you can back them up with a last will and testament to be on the safe side.
This pouring-over of assets into your trust requires the probate process, although assets already held in your trust will not. The provisions of your trust will then determine which beneficiaries will get this property, as well as how and when they should receive it.
A pour-over will cover two basic points: It names an executor to take charge of the assets that were not funded into your trust, and it directs them to fund them into your trust.
Note
A pour-over can also be a name for a guardian for your minor children if you have any. Your trusted documents cannot achieve this. The court will appoint a guardian and conservator for your children if you fail to name anyone in a will. This might not be an individual you’d prefer.
Requirements for a Will
Will requirements are set by state law, and you must meet your state’s requirements whether you’re making a simple pour-over will or a more complicated one. It must meet the requirements for a valid will, or the probate court will not honor it. The result would be the same as if you hadn’t left a will at all.
These rules typically govern how many witnesses you must have upon signing your will and exactly how you must sign the document. Many “invalid” will be declared void for errors in these simple areas.
Note
Making an error won’t just eradicate a specific term or bequest. Your entire last will and testament and all of its provisions will be thrown out by the court. Always have your will reviewed by an attorney if you write one yourself, even if you use estate-planning software, or consider having an attorney draw up your will in the first place.
You must also have reached the age of majority in your state to be able to leave a last will and testament. Minors can’t do so. You must be of sound mind.
You cannot use a last will and testament to coerce a beneficiary into taking some action, whether it’s illegal or just something you believe to be in their best interest, such as graduating from college. You cannot disinherit your adult children if you live and die in Louisiana.
Note
Some states allow you to include a “no contest” clause in your will, also sometimes referred to as an “in terrorem” clause. It basically says that if any of your beneficiaries unsuccessfully contest your will, they’ll lose even the inheritance you did leave them. Check with a legal professional to find out whether your state allows this type of provision before you include one.
Do I Need a Will?
The state you live in at the time of your death, as well as any other state where you own real estate at the time of your death, will effectively provide a will for you if you fail to make one before you die. The same will happen if a court declares your will to be invalid. State intestacy laws will determine who gets your probate property in either of these situations. Your spouse’s inheritance from you could be limited to as little as 50% of your estate if this happens.
Intestate laws of succession generally divide your assets between your spouse and your living descendants only. Your parents and siblings might not inherit anything from you at all if you do not leave a will and if you are survived by a spouse and children.