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Explanation of Your Last Will and Testament

Below, you will find a detailed description of each of the main sections of the last will and testament in the order that they appear in the document. Note that some of these sections may be omitted from your document depending on how you answer the relevant questions.

Introductory Language

The paragraph appearing immediately after the title identifies the testator, lists the testator’s address, and states that the testator is creating this will in sound body and mind. This means that the testator has the mental capacity to understand the contents of the will and so intends to create this will. The final sentence explains that any prior wills or codicils (amendments to wills) that may exist are no longer valid after executing this will. “Executing” here simply means the testator’s act of signing the will in the presence of witnesses.

Declarations

The first section states the testator’s marital status as of the date of signing and identifies the names of any living children (biological or adoptive) that the testator may have.

Payment of Remaining Debts and Expenses

Next, the testator will direct that all of his or her remaining debts and expenses are to be repaid out of the residuary estate. The “residuary estate,” or “residue,” is the portion of the testator’s estate comprised of the assets that remain after paying the testator’s final debts and expenses and after any specific gifts named in the will have been given. By law, your legally enforceable debts must be repaid upon your death, if possible. Other expenses that need to be paid may include funeral expenses, final healthcare expenses, any costs of having the estate administered in court, and any outstanding taxes.

General Instructions

This clause instructs that any beneficiary under the will must survive, or outlive, the testator by at least 30 days to receive a gift under the will. This 30-day requirement is a common legal convention that simplifies the probate process—and the confusion that often ensues—in situations where the testator and the beneficiary may both die around the same point in time due to suffering severe injuries from a catastrophic accident.

Tangible and Intangible Personal Property

In this section the testator makes gifts to specific beneficiaries of his or her tangible and intangible personal property. “Tangible” personal property is any physical asset the testator owns besides real estate, including cars, furniture, jewelry, paintings, etc. “Intangible” personal property is any non-physical asset owned by the testator, such as bank accounts, stocks, bonds, retirement accounts, and insurance policies. If the first-choice beneficiary does not survive the testator, then the gift will go to the alternative beneficiary listed. If the alternative beneficiary does not survive the testator, then the gift will be placed into the residuary estate and pass to whatever beneficiary or beneficiaries are due to receive such property. Note that you may designate two or more co-beneficiaries to receive a gift under the will. For instance, the testator may name her spouse as the first-choice beneficiary and name all of her children as alternative co-beneficiaries to receive the gift in the event that her spouse does not survive her.

Digital Assets

The testator may specify beneficiaries to receive any of his or her digital assets. These include things like online accounts, social media profiles, photos, and other electronically stored information. All digital assets that do not go to specific beneficiaries will be placed into the residuary estate and pass to whatever beneficiary or co-beneficiaries are due to receive such property.

Estate Disposition/Residue

If the testator chooses to make a general gift of all of his or her property, then this section will name the beneficiary or co-beneficiaries to receive the testator’s entire estate. If not, then this section will identify the beneficiary and alternative beneficiary to receive the residuary estate. Again, the “residuary estate,” or simply the “residue,” is made up of the testator’s assets that remain after paying the testator’s final debts and expenses and after any specific gifts named in the will have been given. If no beneficiary survives the testator, then the residuary estate will pass to the testator’s heirs. The laws that determine the proper heirs to receive property are often complicated, but such property generally is given to the testator’s spouse or closest living blood relative.

Executors

This section appoints the executor or co-executors that will be responsible for administering and distributing the estate after the testator’s death. If the first-choice executor is unavailable or unwilling to serve, then the alternative executor named will serve. If none of the named executors are able to serve, then the court will appoint one.

Depending on your answers to the questions, the executors may be required to post a bond to secure against mishandling of the estate funds and may be required to receive reasonable compensation for their services.

Finally, the terms of this section allow the executors to utilize any expedited procedures or unsupervised processes that may be available under state law to administer the estate as quickly and efficiently as possible.

Executor Powers

Next, the last will and testament lists the powers available to the executor in administering the estate. Examples include the following powers: to sell, lease, and invest estate assets; to distribute gifts to minor beneficiaries to a minor’s guardian or to postpone payment until the minor reaches the age of majority; and to distribute gifts either in cash, in kind, or partly in cash and partly in kind. Note that this is not an exhaustive list of powers and more may be available under state law. The executor may always look online or ask the probate court if there are ever any questions as to what actions he or she may take. Also, keep in mind that, although the executors have such powers, they must always seek to carry out the intent of the testator as much as possible. Therefore, these powers should be viewed as tools for carrying out the testator’s wishes.

No Liability

The executors may not be held liable for any wrongdoing so long as they distribute assets in compliance with the will. Unforeseen complexities in administering an estate may sometimes scare good executors away from serving. This language ensures them that they will not be exposed to personal liability for trying to carry out the testator’s wishes.

Otherwise Incapacitated Beneficiary

All beneficiaries must have the requisite level of mental capacity to accept and receive gifts. Gifts left to beneficiaries who are incapacitated will be disbursed to them when they regain capacity, when they die, or when the executor so determines it is appropriate in his or her reasonable discretion.

Gifts given to a Beneficiary during My Lifetime

If a beneficiary receives a gift specified under the will during the testator’s lifetime, then such gift will be deemed to have been satisfied upon the testator’s death.

Simultaneous Death

If the testator is married, then this clause appears stating that the testator’s spouse will be deemed to have survived the testator should they both die under circumstances in which the order of their deaths is uncertain. This clause, therefore, departs from the general rule under the will that beneficiaries must survive the testator by at least 30 days to receive a gift.

Guardians of Minor Children

If the testator has minor children living (biological or adoptive), then this clause appears stating that the named guardian will receive custody of the children in the event the testator dies without a surviving spouse. An alternative guardian is appointed in case the first-choice guardian is unable to serve.

Guardian Powers

If the testator has minor children living (biological or adoptive), then this clause is included to give the guardian the same powers as a parent having legal custody of the children. The guardian is required to see to it that the children have reasonable visitation with members of their immediate family.

After-Born or Adopted Children

Should the testator have any children born or adopted after signing the will, then this clause operates to prevent the will from being invalidated and to require that such children be treated similarly as any other children already included under the will.

Intestate Disposition

Any property in the residuary estate that does not go to the beneficiary or co-beneficiaries designated to receive such property will be distributed to the testator’s heirs. This is essentially a safety net in case any property in the residuary estate is not validly disposed of by the will.

Pet Care

If you opt to include this section, then it names a person to care for one or more of the testator’s pets after the testator’s death and provides pet care instructions. You may have also chosen to provide a certain sum of money to the caregiver for the support of the pets.

Disposition of Remains

If you choose to include it, then in this section the testator sets forth his or her wishes regarding any funeral service and how his or her remains should be disposed of (e.g. by burial, cremation, etc.).

Interpretation and Captions

When construing the meaning of the terms used in the will, words will be considered to include either or both genders and to include the singular and plural. Section captions or headers are included for reference only and do not affect the meaning of the will.

Omission Acknowledgments

If you include it, this section identifies any persons that the testator specifically and intentionally means to leave out of the will (e.g. a disinherited spouse or child).

Testator’s Signature

When the testator has carefully read all of the terms of the will, he or she must sign it in the presence of at least two disinterested witnesses. This means that the witnesses should not be beneficiaries under the will or have any other conflict of interest in witnessing the signing. The testator must also have the mental capacity to understand the contents of the will and that he or she is signing it. If the testator is merely physically unable to sign, then he or she may designate someone else to sign on his or her behalf. Finally, the testator must sign freely and not under duress or undue pressure from others.

Witness Acknowledgment

The testator and the witnesses must all be at least 18 years of age and must sign in the presence of each other (everyone should see each other sign). The acknowledgment affirms their ages, that the testator is of sound mind and memory, and that the signature was not procured fraudulently.

Notary Acknowledgment

For certain states, a notary section will be attached. Although not required, it is recommended that a notary also witnesses the signing, which will help prove the authenticity of the will should it ever be challenged in court.

Self-Proving Affidavit

In states that allow it, a self-proving affidavit appears here. Although not required, it is recommended that the two witnesses and a notary sign this affidavit, which will help prove the authenticity of the will should it ever be challenged in court.

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Frequently Asked Questions

Who needs a will?

Every adult needs to do at least some estate planning, even while young and healthy. In many cases, a will is a key part of an estate plan.

Specifically, wills are an important planning tool for those who want to make sure that their wishes are formally and legally documented by specifying how their estate should be managed and distributed after they die.

Those with one or more minor children should also consider creating a will to make sure that they have identified contingency plans for the custody of their children in case both parents die prematurely.

What does a will do?

The primary role of a last will and testament is to identify how assets and liabilities will be handled after the testator—the person creating the will—dies. After payment of the debts, taxes, and expenses of administering the estate, the remaining assets that pass through the will are distributed according to its terms.

Wills also serve to identify who will be in charge of handling the estate and take care of administrative tasks like safeguarding assets, paying final expenses, settling and paying valid debts, and filing and meeting any final tax obligations. All this occurs before any distributions to named beneficiaries and heirs are made. The person in charge of handling the estate is called different things in different states, but most commonly that person is known as the personal representative or executor of the estate.

A will can also nominate a guardian to have physical custody of minor children if a child’s parents die before he or she reaches the age of 18.

Can I disinherit someone in my will?

Wills are governed by state law. In most states, you can disinherit a child, but you cannot completely disinherit a spouse.

One of the reasons someone may choose to create a will is to document his or her wishes for distributing assets unevenly among named beneficiaries or completely disinheriting someone altogether.

If you choose to disinherit a relative, it is a good idea to ensure that your will includes language confirming that any omissions are intentional and are not the result of a mistake. This can help avoid litigation brought by someone who felt they should have inherited a share of your estate.

Can I change my will?

You are free to update your will at any time. In fact, it is highly recommended that you review your will periodically to ensure that it still echoes your wishes and reflects the contents of your estate. There are two ways to change your will. Firstly, for minor changes, you can make a document called a codicil. This document will state the changes you wish to make and will be attached to your will. Alternatively, you can make a new will if you need to make more extensive updates. It is always a good idea to destroy all copies of any old wills and to notify the relevant people.

How often should I revise my will?

It is always a good idea to revisit your existing will and other estate planning documents when a major life event occurs. Examples include getting married; getting divorced; the birth, adoption, or death of a child; becoming disabled; or significant changes to your financial situation. As state laws govern the interpretation of a will, moving to another state is also a good time to examine your estate plan to ensure that it is still doing what you want it to do.

Similarly, if someone you named to play a role in the management of your estate dies or become disabled, or if one or more named beneficiaries dies, it is a good idea to review your will and consider making changes.

In addition to these types of life events, a good rule of thumb is to review your will and other estate planning documents every three to five years. If changes are warranted, remember that they usually need the same legal formalities as creating a new will.

Do I need to register my will?

No state requires that you register your will; however, it is important that your executor and beneficiaries at least know the location of your will or are given copies. If you do decide to register your will, you should contact your local probate court or Secretary of State’s Office to see if your state offers this service. Alternatively, there are private companies that will register and hold a copy of your will. Both state and private companies normally charge a fee for this service.

Who should I tell about my will?

While you may choose to keep the contents of your will confidential, at a minimum you should notify people of your will’s location and discuss your wishes with your executor so that he or she can effectively carry out your wishes. You may also want to tell your partner, children, and close friends for extra protection.

Is my will valid if I move out of state?

Yes; all states are required to recognize and uphold wills from other states. However, local state laws may affect how your estate is treated. For example, property may be treated differently when moving from a community property state to a common law property state. If moving abroad, there are no guarantees that your last will and testament will remain valid. When moving, it is recommended that you seek advice on the impact it will have on your estate plan.

What is probate?

Probate is the process in which your executor verifies your will in court and then gathers and disburses your estate. The process is slightly different depending on which state you live in and the size of your estate. As long as your will is correctly signed and witnessed, the process is usually relatively straightforward for your executor.

Will my will control all of my assets?

One of the biggest misconceptions about wills is what they actually control. A will only controls the assets that pass through your estate. These are known as “probate assets.” Generally speaking, a probate asset is something that you own in your name alone at the time of your death, without a designated beneficiary or joint owner.

In contrast, certain assets will pass independently of, and outside of, your will. These are known as “non-probate assets.” Anything you own with someone else as “joint tenants with rights of survivorship” or “tenants by the entirety” will pass to the other named joint owner when you pass away.

Similarly, any assets where you have named one or more designated beneficiaries will pass by law to those named beneficiaries when you die, regardless of what your will says. This may include things like life insurance policies, fixed and variable annuities, POD (pay on death) or TOD (transfer on death) beneficiary designations, and retirement accounts such as traditional IRAs, Roth IRAs, 401(k)s, 403(b)s, etc.

Can a will be used to pass life insurance or retirement assets?

When you purchase a life insurance policy or annuity contract, or when you open a 401(k), IRA, or other retirement account, you will generally be asked to designate one or more beneficiaries for the policy or account. Your named beneficiaries will inherit by contract, which means that those assets will not pass through your last will and testament.

In some cases, people want to make sure all of their assets pass according to the terms of their will. In those cases, naming “my estate” as the beneficiary will accomplish that goal. However, because of the complexities surrounding tax laws when retirement dollars flow through a will, you may wish to consult a tax advisor or accountant before designating your estate as your retirement plan beneficiary.

Does having a will eliminate the need for probate?

A valid will does not eliminate the need for a probate court proceeding to wind down someone’s estate; however, it can help streamline the process, making it faster and simpler.

Whether or not your estate will need to go through a probate court proceeding in your state will depend on your state’s laws and the laws of any other states where you may own real property (real estate). In most states, there is no need for probate court if the total assets that pass through the will (“probate assets”) are under a certain dollar amount, as determined by state law.

Can a will include guardianship provisions for my minor children?

Yes. One of the primary reasons many young parents decide to create a will is to plan for the worst-case scenario by nominating someone to have physical custody of their minor child or children in the event of the parents’ premature deaths.

If you decide to nominate a guardian in your will, it is recommended that you discuss your wishes with the person you want to name ahead of time. Becoming a legal guardian for someone else’s child is a big responsibility. You may also want to name one or more successor guardians if the first named person declines or is not able to serve in that role for your children.

What information should be in my will?

The goal of creating a will, in most cases, is to provide some structure and guidance so that the management of your estate will be orderly and as easy as possible.

To that end, your will should clearly identify your named personal representative or executor. It is a good idea to name at least one successor personal representative in case the person you named first is not able or does not qualify to serve in that role.

Your will should also clearly identify how the assets that pass through it should be distributed. If you are dividing assets among a number of people and charitable organizations, ensure that the will’s terms account for the distribution of 100 percent of those assets. You may wish to identify contingency plans so that there is no question about what should happen to a named beneficiary’s share if he or she does not survive you.

Can my will authorize someone to handle my digital assets when I die?

A majority of states have adopted some version of the Uniform Fiduciary Access to Digital Assets Act (UFADAA). These laws generally state that a person creating a will can authorize a designated person to act as a fiduciary for electronic accounts, digital files and records, hardware, software, websites, and any other digital records someone owns at the time of their death.

Generally speaking, the designation in a will or trust instrument covers accounts or assets for which the account owner did not already designate a fiduciary directly with the service provider (like Facebook) and accounts where the provider’s terms of service are silent on what happens to the digital account or asset when the owner dies.

What is required to make a valid will?

In every state, you need to have legal capacity in order to create a valid will or another estate planning document. This means that you must be at least 18 years old, you must understand the nature of your assets, you must understand what would happen in the absence of a will, and you must understand how your will would distribute your assets.

Beyond legal capacity, your will also needs to meet the requirements of the state or jurisdiction where you live. These may include requirements for a certain number of witnesses, notary public signatures, and other specifics.

Should I give copies of my will to anyone?

It is important that someone else knows you have made a will. You should notify the person or people you have named to play any roles in your will, including your personal representative, the guardian for your minor children, and any trustee(s) for testamentary trusts that you have named.

As your will contains your private personal information, whether you should provide copies of your will to any of those people is a personal decision. Your will should be safe as long as at least a few people have copies and know where you keep yours.

If you do decide to give photocopies of your will to your nominated personal representative, family members, or friends and later decide to make changes to the will, you may want to provide copies of the codicil or new will to them. This can help limit confusion when your estate is administered after your death.

Where should I keep my will?

In the event your will needs to go through a probate court proceeding, having the original document may make that process easier for your nominated personal representative or executor. Therefore, it is important that he or she is able to access the document.

Your will is an important legal document, so keep it in a safe place. This can be a safety deposit box if someone else knows it is there and has authorization to access the box at the bank or other financial institution. Keeping your executed will in a home safe, fire-proof box, or another place inside your home can also be effective, as long as your personal representative or executor knows where to find it.

Generally, there is no need to file or register your will with any state or county government authority, although some jurisdictions allow people to file their wills for safekeeping for only a nominal fee.

What is a testamentary trust inside of a will?

A will generally identifies certain people as beneficiaries of assets that will be distributed in full when the estate is settled.

A testamentary trust is a way to establish trust provisions that provide for ongoing management of assets for the named beneficiaries for a period of time. Unlike a revocable living trust, which is effective during the trust creator’s lifetime, a testamentary trust does not spring into being until the will is administered after the person’s death.

Testamentary trusts can be used to provide for long-term management of assets and are often used when beneficiaries are minors. The trust provisions generally give a named trustee the authority to make distributions for the beneficiary’s health, education, support, and maintenance. Testamentary trust provisions should also identify under what conditions a lump sum distribution could be made. For instance, this may occur when a child reaches a certain age.

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