What is a Last Will and Testament?

The First Building Block to Your Estate Plan

A Last Will and Testament is a legal document that is the first building block to your estate plan. After determining your need for an estate plan, your attorney will recommend either a will-based plan or a trust-based plan. Your Last Will and Testament will take on significantly different roles depending upon the type of plan that has been recommended.

Will-Based Estate Plan

With a will-based estate plan, your Last Will and Testament will provide all of the essential details of who will get what and when they will get it after you die. In a will-based estate plan, your Last Will and Testament will cover four important points:

1. Who will be in charge of your estate as your Personal Representative/Executor;
   
2. What powers your Personal Representative/Executor will have;
   
3. Who will inherit your property; and
   
4. How your property will ultimately be transferred to your beneficiaries.

If you have minor children, your Last Will and Testament will also cover a fifth important point: who will serve as the Guardian for your children until they become adults.

Trust-Based Estate Plan

With a trust-based estate plan, your Revocable Living Trust will cover the four important points listed above, but the person in charge after you die will be called your Administrative or Successor Trustee instead of your Personal Representative or Executor.

Even with a Revocable Living Trust, however, you'll still need to have a Last Will and Testament. This is because you'll need to fund your assets into your trust before you die so that your trust agreement can govern what will happen to the trust assets after you die. If you fail to fund even one asset into your trust, then your Last Will and Testament will be necessary to "catch" the unfunded property and transfer into your trust. In this case, the Last Will and Testament will simply function as a "Pour Over Will," meaning that it will provide for the unfunded asset to pour over into your trust after your death through the probate process.

A Pour Over Will only needs to cover two important points:

1. Who will be in charge of your unfunded assets as your Personal Representative/Executor; and
   
2. What powers your Personal Representative/Executor will have.

If you have minor children, your Pour Over Will will also cover a third important point: who will serve as the Guardian for your children until they become adults. Where the unfunded assets will ultimately go will then be determined as provided in your Revocable Living Trust.