Last Will and Testament

What Is a Last Will and Testament?

A last will and testament is a legal document describing a person’s last wishes on how their estate should be distributed after their death.

A person making a will is named a testator. A will should be drafted only by an individual of legal age (i.e., at least 18 years of age) who is of sound mind and does not suffer from any mental diseases.

A last will is used to define clear instructions on how all or part of the testator’s estate should be distributed after a testator passes away. The testator’s estate includes all the property that belongs solely to a testator, including real estate, bank accounts, securities, etc.

The law does not oblige you to make a will—it is your choice, not a duty. In case a Last Will and Testament document is absent, state law governing inheritance and probate will apply automatically to your estate once you pass away. It means that your estate will be distributed in accordance with the law rather than with your wishes. On top of that, upon distribution of probate property, additional property or inheritance taxes might be imposed on your family members or other beneficiaries. Therefore, careful estate planning is vital.

There is no mandatory requirement to draft a will with a lawyer. You can do it yourself. Though, it is highly recommended to seek legal advice after the will is written to ensure the document is in accordance with the state laws and does not have contradictory provisions.

Last Will vs. Living Trust

Even though both documents could be used together along the road, they serve absolutely different purposes. A last will and testament is a legal document focusing on a person’s final wishes related to their assets and property. In fact, the will becomes effective at the moment a testator passes away.

A living trust, also known as a health directive, includes guidelines about health decisions and medical directions for a person who is incapacitated or can no longer make decisions for themselves. The living trust does not deal or intend to deal with estate planning.

Last Will vs. Power of Attorney

A power of attorney is used by one person, a beneficiary, to appoint a personal representative to act on their behalf. You designate a personal representative for various matters—to enter various transactions, sign contracts, represent you in front of state authorities, etc.

A power of attorney becomes effective on the date of its issuance or on any other later date indicated in the text of the said document. While the last will and testament becomes only valid upon a testator’s death. A power of attorney can be terminated at any time, though the last will and testament cannot be changed once a testator is dead.

Last Will vs. Codicil

Once the last will and testament document is ready, it is essential to keep it updated all the time. In the course of your life, your circumstances may change, for instance:

• the new assets could be purchased;
• the new beneficiaries may pop up on the horizon;
• the family’s cast may change as well, and many other circumstances.

All those changes should be properly reflected in your last will and testament document. A codicil to a last will and testament is a legal document used to amend an existing will without its revocation. A codicil is used to introduce minor changes into the original will.

If more structural changes are required, it is always better to make a new last will and testament document and cancel the previous one.

Last Will and Testament—How It Works?

Types of Last Will and Testament

A last will and testament template should be made in a simple written form by a testator. Once the will is ready, most states require a will to be witnessed by at least two witnesses. If a will is drawn by someone, the testator, family members, or other beneficiaries may challenge such a will in the court. Therefore, most of the states require the presence of witnesses who are not beneficiaries under the will.

Some states, though, have an exception, allowing a will to be written by a testator without the presence of witnesses. This type of will is named a holographic will. The holographic will is accepted only by a few states like Maryland, Alaska, California, and some other states. The main issue with this type of will is that it is hard to prove if a testator indeed signed a document. A good example of last will and testament written as a holographic will could be a will made by a soldier on a military mission.

One more type of will that is popular amongst married couples is a joint will. A joint will is a legal document made by a married couple and aimed at establishing their joint wishes regarding the disposal of a property after their death. The main drawback of such a will is that it could be amended only by both partners. Thus, even if there is an urgency to change a will, a surviving spouse won’t be able to do so.

Important Considerations while Drafting a Last Will and Testament Template

A testator’s marital status plays a crucial role since it directly affects the scope of the estate included in the will. If a person is married or in a long-lasting civil partnership, a testator has to consider the property rights of their spouse as well. In particular, if a couple has a shared property together, a testator cannot make directions on the disposal of such a property in whole in the text of the will.

Another thing to keep in mind is the existence of any previous wills. In order to avoid long court disputes in the future, it is always advisable to cancel all previous wills while drafting the new one. This excludes a situation in which a current will might contradict in part or in full with the previous wills.

Last but not least is a residual estate, to which a separate thought should be given. A residual estate constitutes all the assets left in a testator’s estate once all main obligations, including taxes and debts, are settled. It plays a crucial role in estate planning; therefore, a testator should thoroughly consider the way it will be distributed amongst beneficiaries.

Essential Components of Last Will and Testament Template

All last will and testament documents should contain the following important elements:

• List of Assets: A testator needs to include in the will all the assets they want to dispose of after their death. It is important to list all the real property carefully, including all tiny details and characteristics, in order to make sure there is no confusion. Please note that a property that is not included in the will will be distributed according to the laws of state where a testator is domiciled. The following assets could be included in the will: real estate, digital assets like bitcoins and social media accounts, investment assets, bank accounts, and personal items like antiques or jewelry.
• Executor: All last will and testament templates should contain information about an executor—a person who makes sure that all the wishes inside the will are implemented properly. An executor appointed under the will should be a person whom you trust, who is of sound mind, and at least 18 years of age. It could be your friend, attorney, or any other person. Please note that an executor should not be put as a beneficiary under the will. It is always recommended to appoint a substitute executor in case the main executor cannot perform their duties properly, sick or dead at the moment the probate is open.
• Beneficiaries: A beneficiary is a person or legal entity to whom a testator distributes part of their estate after their death. You can appoint as a beneficiary your spouse, children, parents, grandparents, or friends. There is no limitation in appointing a charity or a trust as beneficiary under the will as well. It is also legally required to state all living children in the text of the will, as it ensures that all of them are duly considered by a testator while distributing assets.
• Trust for Minor Children: If either of your beneficiaries is a child under the age of 18, you have to appoint a legal guardian or trustee to manage a minor’s part in the estate until they reach the age of majority. Please note that the age of majority for children differs depending on the state. You can appoint several guardians for your minor children—it is advisable for a case when either of the guardians won’t be able to perform their duties or passes away before the children reach the age of majority.
• Trusts Created for Special Needs: If either of the beneficiaries has special needs or disabilities, you can create a trust to ensure they can receive all necessary support and medical treatments after you pass away.

What Shouldn’t Be Included in the Last Will?

Shared Property

A testator has to list only personal property belonging to a testator. It is not possible to include a spousal shared property in your individual’s will. If a testator is married, it is always advisable to make a joint will.

Non-probate Assets

As a rule of thumb, a testator needs to list all their assets in the Last Will and Testament document. Once a testator dies, a probate is opened, and the executor has to file further documentation with a probate court in order to start a procedure. A probate court makes sure that all the testator’s debts are paid and distributes your estate to the designated beneficiaries.

Certain assets are known as non-probate assets. Non-probate assets are transferred directly to the dedicated beneficiary and can escape probate. They are:

• Life Insurance Policies;
• Retirement plans;
• Specific bank accounts like IRAs, etc.

Funeral arrangements

Though it is common to include details of funeral arrangements in the text of the last testament and will template, it is still not advisable to do so. In fact, after a testator’s death, beneficiaries and executors won’t be able to access the document. Therefore, all the funeral arrangements should be listed in a separate document, which should be easily accessible by your executor or attorney.

A testator can create a simple instructions letter containing various funeral wishes, including

• place for funeral ceremony;
• burial place;
• funeral expenses and their compensation;
• scattering of ashes and many more.

Pets

A bad example of last will and testament template is when a pet is listed as a beneficiary under the will. According to the law, pets cannot be listed as beneficiaries. In order to make sure that your favorite pet gets proper care after your death, it is always a good idea to appoint a pet guardian. A pet guardian is an individual or legal entity who will be authorized to provide food and daily care for your pet after your death.

Printable Last Will and Testament Template [PDF or Word]—what’s next?

Signing the Will

After a template for last will and testament is ready, it should always be signed by a testator. A testator’s signature should be put in the presence of at least two witnesses. Some states, like Alaska, require the testator to have at least three witnesses. Check the legislation of your state carefully to make sure you are aware of the minimum required number of witnesses.
Once all the formalities are done, your last will and testament becomes a legally valid document.

There is one more element that can add an additional layer of protection for your will. This is a self-proving affidavit. Basically, a self-proving affidavit includes a notary acknowledgment of a testator’s and witnesses’ signatures. After a testator’s death, a probate court wouldn’t need to verify the authenticity of a testator’s signature, since it has already been done by a notary.

Storage of the Will

Last will and testament documents should be kept in a safe place. It is always advisable to make a few copies of them. One copy could be kept with a testator’s attorney, another one in a safe box, and the third one with a close friend, for instance.

What Is the Best Way to Create a Last Will?

Making a will might be a difficult process; therefore, we break it up for you into a few simple steps:

• Navigating Beneficiaries: Think carefully about whom you want to become a beneficiary under the will. Should it be your immediate family members, a partner, a close friend, or someone else? Make sure to indicate their full name to avoid any possible confusion.
• Clarifying Residual Estate: Before making any disposal directions, the exact amount of residual estate should be defined. Think about all legally enforceable debts and duties, which may significantly affect the size of the testator’s estate. All the property should be included in the will. Make sure the description of the property included in the residual estate is clear and does not cause any doubts. Avoid inclusion of non-probate assets, mentioned above. If there are several beneficiaries, consider how the estate should be divided between them—in equal shares or in some other way.
• Making Specific Gifts: If there are certain assets that you want to give as a gift to a particular beneficiary, it should also be stated directly in the will.
• Navigating through Last Will and Testament templates: It is always better to use a customized document, which will accommodate all your needs and preferences. Avoid using free last will and testament forms available online, as they might not suit your particular situation. Faster Draft offers you a fully customized Last Will and Testament sample.
• Signing the Will: To make your will a legally binding document, make sure a testator signs it in the presence of at least two witnesses.