Creating a Last Will and Testament and a Living Will is one
of the most important things any individual can do for his/her family and
heirs. A Last Will and Testament legally
authorizes the wishes of the creator, the testator, to be committed for
execution upon his/her death. A Living
Will legally speaks for a person who cannot speak for him/herself because of a catastrophic health condition or trauma that might leave the person
incapacitated. What makes a Will even
more crucial is the fact that everyday events are so unpredictable.
A majority of people in the U.S. understand the significance
and importance of drawing up a Will. Even
though most Americans agree that a Will is a critical part of having a sound
financial plan, thousands of Americans die everyday without a Will and submit
their families to the rigors of probate court and state laws. Unfortunately, many people think death cannot
happen to them or they have plenty of time and therefore put off creating a Will
until it is too late.
According to data collected by the National Center
for Health Statistics (NCHS) for the U.S. Department of Health And Human
Services (HHS) and the Centers for Disease Control and Prevention (CDC), about
two-and-a-half million people die the United States annually. That translates to a death rate of eight
hundred twenty-six people for every one hundred thousand individuals in the U.S.
The Benefits of Creating
If the estate owner dies with a legal Will in place, he/she
died testate. A will empowers the
testator to control the rights of others over his/her property, assets,
business interests, investments, financial resources, and even their family
after his/her death. It is referred to
as the Last Will and Testament because it denotes that this is the last
expression of the testator’s desires and there by supersede any previously
The estate will be
able to avoid some probate taxes and court costs associated with probate and
consequently leave more for the heirs.
The testator will name an executor in the Will. The executor’s duties are to carry out the desires
of the testator as per the instructions in the Will. A testator can designate a guardian for a minor
children or custodian for a disabled person in a Will, sometimes known as a will trust. It can also be used as an instrument for
distribution in a Trust.
A Will requires the testator to take inventory of his/her
possessions, business interests, and assets so that they can be adequately
distribute among the beneficiaries and heirs. Testator’s assets will include any holdings in
the testator’s name, partnerships, joint ventures, Trusts, or joint ownership
An inventory of a testator’s assets can include:
- Life Insurance/Annuities
- Pension/Retirement Accounts
- Personal Residence/Real Property
- Funds/Savings/CDs/Money Markets
- Business/Company/Corporate Interest
- Investments/Stocks/Bonds/Mutual Funds
- Laws Suit/Structured Settlement Benefits
- Personal Property/Motor Vehicles/Jewelry/Collectibles/Antiques
The Consequence of Not
Creating a Will
If the estate owner dies without a legal Will in place,
he/she died intestate. In this case, the
estate moves to probate court for settlement and the particular laws of
intestacy for that jurisdiction will apply for the distribution and settlement
of the estate. The probate court will appoint
an administrator to act on behalf of the estate. The administrator’s duties are the same as
the executor‘s duties in a testate case. The state will then determine the systematic
distribution of the estate according to the laws of that state. If the deceased had no legal heirs, the state
can claim the estate.
The Probate Process
The probate process requires similar actions by the executor
or the administrator they include:
- Provide proof that the Will is valid and legal
- Present an inventory of all assets owned by the estate
- Notify all the persons named in the Will
- Notify all current creditors of the estate
- Notify any agency or company with interests in the estate
- Appraised all assets of the estate
- Pay all debts, taxes, fees
- Distribute all remaining assets as per the desires of the deceased
Rules of a Will
Even though each state has its own specific conditions and
regulations, there are some general requirements for the creation of a Will.
- General requirements for Will to be legal include:
- The individual must be at least eighteen years of age
- An emancipated minor can make a legal Will
- The person must have a clear understanding of what a Will is
- The person must be of sound mind and memory
- The Will must be signed and dated
- In most states, a certain number of witnesses must sign the Will
(number of witnesses varies by state and witnesses cannot be beneficiaries or
- Some states require that specific language be used
- In some states, the executor named must be a resident of
- An individual should update his/her Will after every major life
Types of Wills
There are several types of Wills but not all of them are
permissible or acceptable in every state.
A Will is typically a written document but some states allow oral Wills
but they do not necessarily apply to all the positions and belongings of
Living Will –
This type of Will is not used to distribute assets but it is used to relate the
specific healthcare wishes of the owner in the event that the person cannot
express him/herself for continued or discontinued treatment. It contains specific instructions to be
followed by a doctor or hospital in relation to permissible healthcare options.
Simple Will –
This type of Will allows for the allocation of testator’s possessions if the
estate is straightforward and uncomplicated.
Different laws apply in different states to this kind of Will and the
distribution of assets.
Deathbed Will –
This type of Will is created in an emergency when the testator is faced with
impending death. Though this type of Will
is legal and binding, creating a deathbed will is chancy and precarious because
the mental condition and capacity of the testator at the time of the Will’s
creation can be challenged in court. In
addition, wills created under duress and haste leave much room for error,
omissions, inconstancies, legal irregularities, and may cost the estate more in
taxes and fees because of time restrictions and lack of research into local
Oral Will – This
is a spoken Will as opposed to a written Will and is usually only accepted in emergencies
when a written and properly executed Will is not feasible. Few states actually recognize this type of Will
otherwise because of the high risk of mistake or fraud.
Will – This Will actually sets up Trusts for part or all of the assets of
the estate and the Trust can be the heirs or beneficiaries of the
testator. The assets are transferred to
the Trust and the beneficiaries named in the Trust now reap the rewards of the Trust. A Will can contain multiple Trusts and a Trustee
is assigned to manage and oversee the execution of the Trust/s. This Trust can be used to provide for the
care of a disabled loved one or a child.
Pour Over Will – This
Will is used with a living Trust, which the grantor creates to transfer control
of part or all of his/her assets to a Trustee for administration while the grantor
is still alive. Upon the death of the grantor,
any assets not distributed through the Last Will and Testament will collect in
the Trust created by the Pour-Over Will with named beneficiaries.
Joint Will – This
Will is made by two people leavening everything to the other upon the death of
one and it also specifies what will happen to the assets upon the death of the
second person. This type of will can
prevent a surviving spouse from changing the original wishes of the deceased
spouse in the event he/she remarries.
There are other types of Wills that might be best suited
your needs and/or desires. If you need
more information about Wills and Trusts, contact an estate planning attorney today.