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What is a last will and testament?

Last Will and Testament?

A last will & testament accomplishes several estate planning goals including but not limited to:

  1. Assigning PERSONAL REPRESENTATIVES or EXECUTORS to handle your estate upon your passing
  2. Naming beneficiaries of your estate
  3. Nominating guardians for dependent children
  4. Establishing a TESTAMENTARY TRUST to control how assets can be used prior to distribution and when assets are distributed to beneficiaries
  5. Waiving a probate bond

If you pass without a last will and testament, you pass intestate. Your state has a last will & testament prepared if you pass intestate. A spouse and children will typically inherit your estate. Next would be your closest relatives and if no distant relatives can be located, your estate will go to the state.

Should you have dependent children and pass intestate, a court will be left to determine the legal guardians for dependent children. The court's choice may not be your first or even choice, which is why it is important to name guardians for dependents in a last will and testament.

How to make a last will and testaement?

Making A Last Will and Testament

Basics for creating a will in most states:

  1. The will must be dated and signed.
  2. Most wills must be signed by two witnesses who are not beneficiaries of your estate.
  3. Some states allow "holographic" wills which are not witnessed and must be handwritten.
  4. Notarizing signatures helps the court validate the will after you pass.
  5. Wills are typically not recorded in most states.
  6. An attorney is not necessary to prepare a will, though an attorney can help ease concerns over a will's effectiveness.
Last will forms

Last Will Forms

One can hire an estate planning professional to prepare a last will & testament or one can prepare a last will using forms.

If you have any doubts or concerns creating documents on your own, contact an estate planning attorney for legal advice and a professionally prepared plan. You may save time and money now but it could later cost your heirs much more than you saved and delay the transfer of your estate!

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Executors and personal representatives

Executors / Personal Representatives

These people manage your estate after you pass. They file your will and appropriate documents with the probate court, sell assets, settle debts, pay taxes and distribute your estate. The court oversees the actions of the personal representative until the probate procedings are complete.

If you do not name an executor, a court will appoint an administrator, typically a close relative or beneficiary able to handle the task.

When the estate is small enough to avoid probate, family can appoint an informal estate representative to handle debts, taxes and distribution.


Nominating Guardians

If neither parent is able to care for a minor child, a guardian must be named until the child becomes a legal adult. If a will is not prepared naming guardians, the state in which you reside will name a legal guardian. If parents name different guardian(s) in their respective wills, a court will be left to select the guardian. Read more about choosing guardians for children.

The guardian can also be named to manage property for the child or someone else can be named to manage the assets. An easy way to manage assets for a young beneficiary is to set up a trust, either a testamentary trust (read below) or a living trust.


Beneficiaries Of Your Will

Anyone can be named a beneficiary. Almost anyone can be disinherited.

Children may be disinherited. If you forget to add a new child after creating a will, the child typically has a right to claim a portion of your estate.

Regardless of what a will says, in community property states (Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington and Wisconsin) a spouse is generally entitled to half of the assets and earnings. In non-community property states, the spouse may legally claim a portion of the estate, typically a third to half.

Once a beneficiary receives an inheritance, the beneficiary may do whatever he or she chooses to do with the asset. If you would like to have some control over when and how assets are used, a testamentary trust or a living trust can offer various levels of control.

View sample last will

Sample Last Will and Testament

View a famous celebrity's last will and testament. You may notice a trust is created by the will to care for several of the celebrity's beneficiaries.

Living trust will kit

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