Last Will and Testament

When someone says the words "estate planning," everyone automatically thinks "Will" and then "probate."

A traditional Will (sometimes called a "Last Will and Testament" or a "Testamentary Will") is a legally binding document that defines how you would like your property distributed when you die. It may also define your wishes concerning who becomes guardian over your minor children.

Contrary to popular belief, a Will alone will not avoid probate. In fact, validating or proving the Will is one of the primary purposes of probate. A Will in hand means nothing without the validation from the probate court, as there could have been later Wills written. Most Wills start out "I hereby revoke all Will and codicils I have previously made." (A codicil is just a lawyer's fancy word for "amendment.")

What if I don't have a Will?

If you have not created a Will, you may be surprised to learn that you already have a Default Will provided by the state. It varies slightly with each state, and is probably not what you intended.

What if I have a Revocable Living Trust?

Some Revocable Living Trust advocates preach against Wills. They say Wills are bad and Trusts are good! On the contrary, the Will is actually a powerful legal tool. You have to learn how to use it. Even if you have a Revocable Living Trust, you need to have a Will. Frankly, sometimes a Will is all that is needed.

Whether you have a big estate or a small estate, the Will should form the foundation of your estate plan. If you have a Revocable Living Trust, your Will may be very simple. That is fine. However, the Will is still an important part of your estate plan, and it shouldn't be "brushed off" as being unimportant just because you have a Revocable Living Trust. If you have a Revocable Living Trust and don't have a Will, something is wrong.

With a Revocable Living Trust, you will create what is called a "Pour-Over Will." It acts as a safety net for your trust. Your Will should "tie" together the Revocable Living Trust, tax plan, and other facets of your estate plan. Specifically, if you have minor children or an incompetent family member, the Will should at least name a guardian/conservator. A Will should alway name a personal represetative. A personal representative is the person who does the leg work required by your Will after you die. If your Will is used to transfer property after your death, there will be a probate. The purpose of a Revocable Living Trust is to allow property to be transferred through the trust rather than through the Will, thus avoiding probate.

Why Some Attorneys Like to Write Wills

Attorneys are very happy to have a client request a Will. Drafting a Will, the way most lawyers draft a Will, is bread and butter for the lawyer. The lawyer doesn't make a lot of money up front, but once the Will is written, you are psychologically "locked" into the lawyer. You will probably do other legal work with that lawyer. Nine out of ten times, when you die, your family will make a beeline to the lawyer that drafted the Will. That may not be all bad, because the lawyer who drafted your Will has more information on you and knows what you want better than any other lawyer. The problem is, sometimes the lawyer takes advantage of your family during the probate process.

Lawyers actually make what are called "Will files." They draft lots of Wills at cheap prices in order to get the probate business. It takes about 10 years to get a good Will file built up, but once the lawyer gets set, his financial success is assured by the probate. Some attorneys will flat out tell you Revocable Living Trusts don't work and shouldn't be used in 96% of the cases. I disagree. In many cases, when lawyers make such a statement, they are simply protecting their job security.

Should I Have a Joint Will?

A husband should have his own Will, and a wife should have her own Will. There should be two separate pieces of paper. If you have a husband and wife Will, which is only one document "shared" by the two of you, that is called a Joint Will.

Don't let someone sucker you into a Joint Will, because they are very awkward to work with when one of the couple dies. Joint Wills were more common 30 or 40 years ago. Today, they are almost never used. If you happen to have a Joint Will, you better get new Wills.

Isn't a Will Better Than Nothing?

Of course! While I tend to be more of an advocate of an entire estate plan (consisting of at least a Will, a Revocable Living Trust, a Living Will, and a Durable Power of Attorney), having at least a Will is much better than forcing your family to accept the state's Intestate Will. There are many inexpensive ways to create a Will, including software packages that you buy at the store.

In fact, check back here later on and we may put a good free Will on this site as a public service.

Elements Of a Will

Here are some of the main elements that should be in a Will:

Naming of a Personal Representative

"Personal representative" is the modern name for the executor or executrix. The personal representative is also commonly known as the "legal representative" or the "personal administrator" in the case of an intestate estate. This is the person that will handle all of the business affairs associated with your estate after you die. The personal representative works with the courts and receives power from the courts to conduct such business.

You should name of list of successive candidates for personal representative.

Naming of a Guardian

One of the real tragedies I see are family tragedies, not financial tragedies, and they usually involve orphaned children. If you still have minor children, make sure and specify guardians of your choice; otherwise, the judge will have complete power to assign the guardian. The guardians must stand ready to raise your children (not only if you die, but also if you become incompetent).

Both the eBook Protecting Your Financial Future and Accumulation and Preservation of Wealth System give details about how to properly attach conditions to the guardianship in case circumstances change that make your "ideal guardian" not so ideal anymore.

Distribution of Property

When using a Revocable Living Trust, the bigger properties will be dealt with in the Trust. But it is always the small heirlooms that can cause the majority of the family fights. You see, Grandma gave away that little vase a half-a-dozen different times before she died. Unless she stated somewhere 'in writing' who really gets it, there is bound to be a problem when everyone who thought is was 'theirs' tries to get it. In many states, a personal letter is the best way to handle the small property without the need to rewrite the entire Will. Another alternative is a supplemental hand-written Will (called a holographic Will).

Again, both the eBook Protecting Your Financial Future and Accumulation and Preservation of Wealth System have information about how your will needs to read in order to authorize a personal letter outside of the formal Will. In addition, you will learn about all of the considerations you need to think about when choosing Personal Representatives and Guardians.