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What is a Last Will and Testament?

Wills - The First Building Block to an Estate Plan

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A Last Will and Testament is an important legal document that is the first building block to any good estate plan. After determining that you need an estate plan, your estate planning attorney will recommend either a will-based estate plan or a trust-based estate plan. Your Last Will and Testament will take on significantly different roles depending upon the type of plan that your attorney has 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 inherit your property, when and how they will inherit it, and who will be put in charge of settling your final affairs. With a will-based estate plan, your Last Will and Testament will cover four important points:

  1. Who will serve as the Personal Representative/Executor, meaning the person who will be in charge of settling your final affairs and insuring that your beneficiaries will receive their inheritance;
  2. What powers your Personal Representative/Executor will have;
  3. Who will inherit your property; and
  4. How and when your property will ultimately be transferred to your beneficiaries.

Note that if you have minor children, then your Last Will and Testament will also cover a fifth important point: Who will serve as the Guardian for your minor 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 of settling your final affairs 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 will still need to have a Last Will and Testament. This is because you will need to fund your assets into your trust before you die so that your trust agreement can govern what will happen to the property titled in the name of the trust after you die. But 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 it into your trust after you die. 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(s) 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 assets that were not funded into your trust as the Personal Representative/Executor; and
  2. What powers your Personal Representative/Executor will have.

Note that if you have minor children, then your Pour Over Will will also cover a third important point: Who will serve as the Guardian for your minor children until they become adults.

Where will the assets that were not funded into your Revocable Living Trust go once they go through probate? This will be determined by the provisions of your Revocable Living Trust.

What Happens Without a Last Will and Testament?

What happens if you fail to make a Last Will and Testament before you die? Then the state that 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 provide a Last Will and Testament for you under the state's intestacy laws. These laws vary greatly from state to state and can cause different people to inherit your property if you own real estate in more than one state.

The only way to insure that your property will go the beneficiaries that you choose, as opposed to the beneficiaries that your state of residence or the state where you own real estate chooses for you, is to make a valid Last Will and Testament.

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