Last Will and Testament - with Trusts for Virginia

Last Will and Testament of _____________



I, _____________ ("Testator"), residing at _____________, _____________, _____________ _____________, and born on _____________, being of sound body and mind, declare this to be my Last Will and Testament (my "Will"), and I hereby revoke any and all wills and codicils I may have previously executed.

  1. Declarations. I declare that, as of the date of this Will, I am not legally married and I do not have children.
  2. Residue. I give the residue of my estate, subject to any mortgages or encumbrances thereon and any policies and proceeds of insurance covering such property, to _____________. If _____________ do(es) not survive me, I give that property to _____________. If none of the aforementioned beneficiaries in this paragraph survive me, the residue of my estate will go to a charity chosen by Executor. Executor may pay out of my estate the expenses of delivering such property to the beneficiaries.
  3. Executor. I appoint _____________, as Executor(s) of this Will. If _____________ is/are unable or unwilling to act, or resign(s), I appoint _____________ as successor Executor(s). If none of the aforementioned Executors survive me or are able to serve in such capacity for any reason then I authorize the court to appoint a person or corporation as Executor for my Will. If there are co-Executors and one co-Executor predeceases me or is unable or unwilling to act, the survivor shall serve as Executor. If Executor under this Will shall be unable or unwilling to act in any other jurisdiction where the administration of my estate is necessary, I authorize and direct Executor, and if none exists, then the court, to appoint another individual or corporation to serve in such other jurisdiction. Executor(s) shall have all the powers allowable to executors under the laws of this state as well as the other powers herein stated. I direct that no bond or security of any kind shall be required of any executor.
  4. Powers of Executor
    1. In addition to any powers now or hereafter conferred upon executors by law, Executor shall have the power to
      1. sell estate assets at public or private sale, for cash or on credit terms;
      2. lease estate assets without restriction as to duration; and
      3. invest any surplus moneys of the estate in real estate or personal property, as Executor deems advisable.
    2. Executor may distribute estate assets otherwise distributable to a minor beneficiary as follows:
      1. To the guardian of the minor's person or estate;
      2. To any adult person with whom the minor resides and who has the care, custody, or control of the minor;
      3. To a custodian of the minor under the Uniform Transfers to Minors Act;
      4. May defer payment of such property until the minor reaches the age of majority, as defined by his or her state of residence; or
      5. May distribute all or part of a bequest to a beneficiary younger than 18 years, if it is in the best interest of that beneficiary. If a beneficiary dies before reaching the age of 18, then the relevant bequest shall be placed into residue. No bond shall be required for such payments.
    3. Executor is free of liability and is discharged from any further accountability for distributing assets in compliance with the provisions of this section.
    4. On any distribution of assets from the estate, Executor shall have the discretion to partition, allot, and distribute the assets in the following manner:
      1. In kind, including undivided interest in an asset or in any part of it;
      2. Partly in cash and partly in kind; or
      3. Entirely in cash.
    5. If a distribution is being made to more than one beneficiary, Executor shall have the discretion to distribute assets among them on a pro rata or non pro rata basis, with the assets valued as of the date of distribution. If multiple beneficiaries of a distribution fail to agree upon a division within six months after the date of my death, Executor shall determine the division of the distribution.
  5. Payment of Debts, Expenses, and Taxes. Following my death, to the extent possible, Executor shall pay out of my residuary estate as administrative expenses: (a) all of my legally enforceable debts, funeral expenses, and estate administration expenses, except that any debt or expense secured by a mortgage, pledge, or similar encumbrance on Trust Property need not be paid by Executor, but such property may pass subject to such mortgage, pledge, or similar encumbrance, and (b) all estate, inheritance, legacy, transfer, succession, and other death taxes or duties (together with interest and penalties thereon, if any) that are levied or assessed upon or with respect to any property included as part of my gross estate, whether such property passes under the provisions of this instrument or otherwise. Notwithstanding the above, if a personal representative of my probate estate is appointed within six months after my death, then Executor shall pay the preceding items only to the extent that the value of the cash and readily marketable assets of my probate estate, as determined by Executor, is insufficient to pay those items. The preceding items shall be paid by Executor without seeking reimbursement, recovery, or contribution from any person. Furthermore, no amounts shall be distributed from any retirement plan payable to Executor for the payment of any such debts, expenses, or taxes after September 30th of the year following the year of my death.
  6. Irrevocable Upon Death. This trust shall become irrevocable upon my death.
  7. Otherwise Incapacitated Beneficiary. Any bequest left to a beneficiary who is incapacitated for any reason shall be disbursed when the beneficiary is no longer incapacitated, dies, or when Executor deems it necessary, whichever comes first. Executor shall deem a beneficiary incapacitated, at his or her reasonable discretion, for the purposes of this Will.
  8. Gifts Given to a Beneficiary during My Lifetime. Gifts given to a beneficiary during my lifetime which are provided by this Will to be bequeathed to that same beneficiary upon my death shall satisfy the corresponding bequest provided by this Will.
  9. After-Born or Adopted Children. If subsequent to the execution of this Will there shall be an additional child or children born to or adopted by me, I direct that such birth or adoption shall not revoke this Will and that all references herein to my children and their descendants shall include both my present children and their descendants and any such after-born or adopted children and their descendants.
  10. Intestate Disposition. If Testator has not made an effective disposition of the residuary estate, Executor shall distribute it to Testator's heirs at law, their identities and respective shares to be determined according to the laws of _____________ in effect on the date of Testator's death relating to intestate succession of property not acquired from a predeceased spouse.
  11. Interpretation and Captions. Wherever the context so requires, words used herein in one gender shall be applicable to all genders, words used in the singular shall include the plural, and words used in the plural shall include the singular. The use of captions are for reference only and are not meant to govern or affect the interpretation of any part of this Will.

TESTATOR'S SIGNATURE

I am signing this instrument, which is my Will, immediately below in the presence of the number of witnesses required by state law.

Address of the signing location:

____________________________________

____________________________________

____________________________________

Signed: ________________________________ Date: ________________
(Testator's Signature)

WITNESSES

Signed and Declared by Testator, _____________, on ____________ (date) to be Testator's Will, in our presence, who at Testator's request, in Testator's presence, and in the presence of each other, all being present at the same time, have signed our names as witnesses. Testator is aged 18 years or older. Also, each of us is now aged 18 years or older, is a competent witness, and resides at the address set forth after his or her name. We also affirm that at the time of signing the Will, Testator was of sound mind and memory, and we believe that this Will was not procured by duress, menace, fraud, or undue influence.


FIRST WITNESS

Name: _______________________

Address: _____________________

_____________________________

_____________________________

Sign: ________________________

Date: ________________________
SECOND WITNESS

Name: _______________________

Address: _____________________

_____________________________

_____________________________

Sign: ________________________

Date: ________________________

SELF-PROVING AFFIDAVIT

STATE OF _____________
COUNTY OF _____________

Each of the undersigned witnesses swears as follows:

The attached Will was signed by _____________, Testator named in the Will, on ___________ (date).

When _____________ signed the Will, he or she declared the instrument to be his or her last Will. Each of us then signed our name as a witness at the end of the Will at the request of _____________ and in his or her presence and sight and in the presence and sight of each other. Each of us was acquainted with _____________ when the Will was executed and signs this affidavit at his or her request.

_____________ was, at the time of executing this Will, over the age of 18 years and, in our opinions, of sound mind, memory, and understanding and not under any duress, menace, fraud, or undue influence or in any respect incompetent to make a will. In our opinions, Testator could read, write, and speak in English and was suffering from no physical or mental impairment that would affect his or her capacity to make a valid will. The Will was executed as a single original instrument, and was not executed in counterparts.

FIRST WITNESS

Name: _______________________

Address: _____________________

_____________________________

_____________________________

Sign: ________________________

Date: ________________________
SECOND WITNESS

Name: _______________________

Address: _____________________

_____________________________

_____________________________

Sign: ________________________

Date: ________________________

Notary Public

On ____________________ (date), personally appeared the above-signed witnesses, proving to me by satisfactory evidence of identification, which were ___________________________ (ID types), to be the persons who signed the preceding document and affirming that the contents of this document are true and correct to the best of their knowledge and belief.

Print: ____________________________

Sign: _____________________________ Commission Expires: _______________

[Affix seal]

Instructions for Your Last Will and Testament - with Trusts



A will is a legal document that specifies how you, the Testator, wish certain things to occur upon your death, such as the disposition of your remains, how your property is to be distributed, how your debts will be handled, and who will take care of your children, if you have any. It also serves as a backup for any living trusts you might have. Wills must be drafted and executed in accordance with state law and become irrevocable upon your death.

Testamentary trusts are those set up by your will to take effect upon your death. There are many advantages of putting testamentary trusts in your will, including:

  • protecting your wealth from the beneficiaries' creditors (including from their spouses in the event of a marital breakdown) through a spendthrift trust;
  • reducing the likelihood of claims against your estate;
  • creating a special needs trust for a disabled beneficiary;
  • controlling how your assets are distributed and keeping them in your family line after you pass;
  • giving your children and spouse money over time so that they do not spend it all at once unless absolutely needed;
  • reducing taxes and spreading the burden of taxes; and
  • setting up a pet trust for the care and maintenance of your beloved pets.

Types of Property to Give Away in Your Will

In the will, if you do not put all your assets into trusts, you will also specify how you want your personal and real estate property to be distributed upon your death as gifts. Personal property means any tangible piece of property you have that is not real estate, for instance books, TVs, collections, cars, pets, etc., and also includes any intangible property you own, such as bank accounts, stock, bonds, certificates, etc. Your main piece of real estate is usually your home.

You have all the flexibility you want in deciding what to do with your property. In the will you can state that you wish one person to receive all your personal and real estate property (usually your spouse), you can list specific individuals that should receive specific property, or you can do both, with certain people receiving specific gifts and everything else going to a certain person. Note that you can list as beneficiaries people, businesses, charities, or other entities. Still, it is important to be specific in describing exactly to whom you are giving something and what exactly you are giving them. The more ambiguous you make your will, the more likely a court battle will ensue after you are gone.

Residue

You will be asked to specify in the will the person or entity who you want to receive the "residue" of your estate. Residue is simply a catchall word that includes everything you own that is not specifically mentioned in the will. This way, if you forget to list something or acquire new property after you sign the will, it will still go to the person you list here. For example, if you want all your personal property to go to your spouse, then you will specify in the will that all your personal property shall go to your spouse and that the residue shall also go to your spouse. You can then do the same for your real estate property. This way you can be assured that you left nothing out of the will.

Executor

In your will you will appoint an Executor. This is the person who will be responsible for administering your estate once you are gone. Pick someone you trust to ensure that your debts and taxes have been paid and then transfer your remaining assets as you have directed in your will. It is important that they are organized, responsible, and trustworthy, and it helps if they are good with numbers. The task of administering your estate may be quite burdensome. Whoever you appoint may be personally liable for late filings and unpaid taxes. For this reason, if you have a large or complicated estate, we recommend using a lawyer or a bank as Executor.

Trustee

While the responsibilities of being an Executor can continue for a few years, the responsibilities of a Trustee can continue sometimes for generations. The same considerations of choosing someone who is trustworthy and responsible apply here; however, the financial skills required are even more demanding of a Trustee than of an Executor. Often Trustees will need to know how to invest money, pay bills, collect assets, manage and distribute money, and file accounting statements. While using a relative as a Trustee may save you from having to pay the Trustee a fee to maintain the trust, there may be family conflicts that arise after you are gone that make it difficult for your relative to administer the trust fairly. One possibility is to designate co-Trustees, with your spouse serving as one Trustee and a lawyer or financial advisor serving as the other. Then, if one Trustee dies, the other will continue to serve. At a minimum, a bank or similar institution should be designated as the last successor Trustee so that there will ultimately be a Trustee to take over after any appointed individuals have passed away.

Executing Your Will

In order to make your will legally valid, you need to ensure that it is properly executed. This means you must sign your will in the presence of two witnesses (three witnesses are needed in New Hampshire and Vermont). You must be at least 18 years old to sign the will (16 years old in Louisiana and 14 years old in Georgia). Also, you should avoid the appearance that you are being pressured to execute your will according to someone else's wishes or that your true intentions are otherwise being restrained.

Witnesses

You should pick people who are disinterested parties to witness you sign your Will. Note, if you are unable to physically sign the Will, you may direct another person to sign for you. This means that you should not use as witnesses any person named in the Will itself. You also should not use any relative, since a court will probably find that they have an interest in your Will whether they are named in it or not. Finally, the witnesses should be over the age of 18.

Self-Proving Affidavit

After the will, you will find a document called "Self-Proving Affidavit." This document is useful for speeding up probate of the will by helping to establish that the will was properly executed and witnessed. Note that courts in the following states will not likely accept such affidavits: Washington, Louisiana, Minnesota, Tennessee, West Virginia, Ohio, Maryland, District of Columbia, and Vermont.

Codicils

A codicil is the document used for later making changes to your will after the will has been executed. It basically lists anything you wish to add or subtract from your will, and it is considered part of your will after it is executed. LegalNature provides a simple and effective codicil form for you to use should you decide to make any changes to your will in the future.

Division of Marital Property

If you are married, what property is considered yours and what property is considered your spouse's depends on which state you live in. In most states, if your name is on the deed or title paper, the property is yours to give away as you please. If both spouses have their name on the property, each owns half. Your ability to give away this half-interest depends on how you and your spouse share ownership. If the property is owned as a "joint tenancy with right of survivorship" or "tenancy by the entirety," then whichever spouse survives longest owns the property, so if you die first, you cannot give it away to someone else. However, if the property is owned as a "tenancy in common," then you are free to give away your half-interest and your spouse will retain their half-interest. If you paid for something or received it as a gift, then you probably own all of it. Also note, that regardless of how you distribute property in your will, if your spouse survives you, then they will probably be entitled to a significant portion of your estate.

In certain states, called "community property states," things work a little differently. These states are Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin. In these states, money and property gained by either spouse during marriage is owned equally by both spouses. The same goes for the debts of either spouse. Still, property inherited by just one spouse or received outside of marriage will belong to just that spouse.

NOTE: WILLS ARE IMPORTANT LEGAL DOCUMENTS THAT IMPACT YOUR PROPERTY AND RELATIVES. YOU SHOULD CONSULT A LAWYER IF THERE IS ANYTHING IN A WILL THAT YOU DO NOT UNDERSTAND.

Individual Estate Planning

Last Will and Testament - with Trusts

A last will and testament - with trusts describes a person’s wishes regarding the distribution of his or her assets upon death and allows the person to put assets into trusts that will go into effect upon death. Besides the security offered by traditional wills, there are many advantages of including testamentary trusts, including protecting wealth from creditors and reducing the likelihood of claims against the estate.

LegalNature's state-of-the-art form builder guides you every step of the way. Easily name beneficiaries, divide assets, and designate who should manage your estate and trusts once you're gone.

Let LegalNature help you complete, download, and execute a last will and testament - with trusts you can count on.

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