What Is A Last Will?
A last will is the most recent expression of your desires for the handling of your financial and personal affairs when you die. A last will revokes any prior wills or codicils you may have made. A codicil is simply an amendment of a will.
A last will is a legal document that complies with certain formalities. It must be witnessed by two adults who are not beneficiaries under the will.
A Customized Plan
A purpose of every will is to describe how you want your assets to be distributed to your heirs upon death. One reason for having a last will is that if you don't specify how your property is to be distributed, state law already has a plan for you – and it may not be the plan you want.
For example, under intestacy law (i.e., you die without a will), if you are married and have children, your estate will not all go to your spouse. Your children will each get a share of your assets, and this can often be a problem. It could result in your home, or a major income-producing asset, split among the children – and where would that leave your spouse?
The problems are compounded if your children are minors, and their share of your assets has to be held separate from your spouse's share. And, if you have no children, but your parents are living, the result can be much the same – your estate will not all go to your spouse.
Plus, step-children whom you have not adopted will not inherit from you unless you have a will. So, if you want your spouse to get everything, or you want to include step-children as heirs, you need a will.
A last will ensures that your loved ones receive what you want them to receive, not just what the court thinks they should receive.
Your Personal Representative
Another purpose of a last will is to appoint certain people who will be very important in handling your personal and financial affairs after your death. One of these people is your personal representative, commonly called an executor. You can name a first choice and alternates for a personal representative in your will.
Your personal representative is responsible to find your will, admit it to probate, collect your assets, pay your debts, and generally see that your wishes, as expressed in your last will, are carried out. You should choose someone for this job whom you trust to carry out your wishes.
Any adult person (at least 18 years old), who is legally competent and a U.S. citizen, may be your personal representative. You may name your spouse or an adult child to be your personal representative. Your representative does not need to reside in the same state as you do, but it will be more convenient if they do. For an out-of-state representative, you need to make sure the probate court knows how to locate them – otherwise, they may be unable to serve.
Choosing A Guardian
If you have minor children, you will also want to name a legal guardian for them in the event of your death. This is true even if your spouse is still alive and in good health, in case you and your spouse are killed in a common accident, etc. The purpose of the guardian is to care for and raise your children at least until they reach age 18.
Any adult person (at least 18 years old), who is legally competent and a U.S. citizen, may be a guardian of your children, including an adult child of yours. You should choose a guardian carefully, and possibly name alternate choices. Also, if you want to name a guardian, it must be done in a last will – you cannot name a guardian in a trust instrument or power of attorney. If you are married, you and your spouse should be careful to name the same choices for guardian – otherwise, it could lead to confusion, and your wishes could end up frustrated. If you and your spouse fail to name a guardian, the probate court will find one.
What About Probate?
Normally, a will must be probated under court supervision to extinguish debts and to change the legal title of your assets into the names of your heirs. However, you may request in your will that your estate be probated "independently," which gives your personal representative greater freedom to act without formal court supervision.
If you own property in another state, it will need to be separately probated in that state. In any event, make sure your personal representative knows where to find your will. You might also want to give him or her a copy of your will.
Do I Need A Will?
There are several reasons why you might need a last will. You need a will if you want to leave your property to your spouse in a way different from what the state intestacy law provides, or if you want to include people who are not legal heirs, such as step-children.
You need a last will if you want to name a guardian for your minor children. Most people don't really want their children placed into the care of a stranger. And, you need a last will if you want to name a personal representative to administer the handling of your estate.
Also, you will need a will even if you have a living trust or power of attorney. These tools, by themselves, are not a complete estate plan and do not eliminate the need for a will.
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