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.

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.

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.

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.

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.

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, social media accounts, 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.

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.

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