A “last will and testament” or “will” is a legal document that an individual creates in order to specify how to handle their affairs when they pass away. Your “estate” is all of the money and property that you have at the time of your death. The specific requirements to create a valid will are slightly different in each state. The requirements often require that the will is in writing, signed, witnessed by one or more people, and satisfy other formalities. If you have questions about how to create a valid will, you should consult with a licensed attorney.
What does a will include?
Most wills only address three basic issues:
It specifies one or more persons who will be responsible for managing your estate when you pass away. This person is called the executor or executrix. They are responsible for accounting for all of your assets and liabilities, leading your estate through the probate process, using the estate’s assets to pay for any outstanding debts, distributing the remaining assets and property according to your wishes, and then closing or settling your estate.
It is common to name a spouse, an adult child or a good friend as the executor. It is also common for the executor to retain an attorney to help with the probate process for larger or complicated estates.
(2) Distribution of assets
Most wills also specify who (your beneficiaries) should get your assets, like any real estate, investment accounts or personal property. In many cases, this distribution is determined after all liabilities (like taxes and other debts) are paid.
It is common for a will to make these distributions based on set percentages for each person. For example, 50% to my spouse and 25% to my two children. The will also addresses what happens if one of the named beneficiaries is not alive when you pass away. For example, should the children receive the spouse’s 50% share.
A will can also distribute specific property or a dollar amount to specific people or organizations. For example, give my grandmother’s wedding ring to my dear cousin and $1,000 to my favorite charity. In several dozen states, but not all, it is also possible to leave behind a list that you create later to specify who should get certain personal property, like jewelry, antiques and family heirlooms. Importantly, this less formal method of distributing property is not allowed in every state. It also cannot be used to distribute money, real estate, and certain other types of property (like vehicles, intangible property, etc).
However, many of your assets may NOT be distributed under the terms of the will. The following types of assets generally bypass probate: jointly held property, financial and investment accounts with a named beneficiary, life insurance proceeds, assets held in trusts, accounts with a payable-on-death designation, and property that goes to immediate family members under state law.
In most cases, the distributions you specify in your will are binding on your executor and the probate court. However, in some cases, applicable state law will override parts of your will that violate the law or that are contrary to public policy. For example, some states specify a minimum amount that a surviving spouse must receive and will override the will if a lower amount is specified.
(3) Care of children
If you have minor children, a will often specifies who should be the guardian for the children if both parents pass away. A will often name a primary guardian and alternate guardian in case the first person is not able or willing to take on this responsibility.
This responsible comes in two parts. First, who is responsible for raising the children until they turn 18. Second, who is responsible for managing any assets (like life insurance proceeds or other money) on the children’s behalf. This two-part responsibility can be vested in one person who is responsible for the children’s physical and financial affairs. It also can be divided so that different people are responsible for each part.
It may sound like a lot but these three issues are just the tip of the iceberg. Your surviving family and friends will need a lot more information and direction from you to make sure your final preferences are honored.
What does a will NOT include?
Most wills only cover the three basic issues discussed above. The will does not generally include information about the most important topics: details of your entire estate plan; the location of important documents; details about your financial accounts and other assets; how to find and what to do with your online accounts, devices and electronic assets; instructions for the care of any children; your preferences for the final arrangements; or a personal letter to your family and friends. Each of these topics and more can be included in your Last Letter. Read what may be missing from your will for more details about these missing pieces.
These are not in wills for good reason. Wills generally do not include these details because (1) it would be very expensive to have your lawyer include this additional information, (2) this information can change frequently and it would be time-consuming and costly to always be updating your will, and (3) during the probate process your will is part of the public record and many people would not want this information disclosed.
While your will may address the basics or even if you do not have a will, there is a lot more information that your family will need and that you can provide by using Last Letter.
What happens if you don’t have a will in place when you die?
If you do not have a will or if your will is invalid, the laws in your state will decide who is responsible for managing your estate, who is entitled to receive your belongings and who should care for your minor children. The biggest problem of passing away without a valid will (formally called “intestate”) is that the probate process may be more expensive and time consuming for your family, you will not have a say in how your assets and belongings are distributed, or who raises your children.
If you need a will or need to update an existing will, speak with an attorney in your state.
* * *
There are hundreds of details that your family will need during this time of need that are not included in a will. It’s never too early to be prepared.
Would your family and friends know what to do if something happened to you? LastLtr.com helps you securely gather, organize and share all of the important details they will need. Each Last Letter is fully customized and contains all of the information and preferences that you want to include. You can create a Last Letter for yourself or for an aging parent.
If you have any feedback about this article, you can send us a note at firstname.lastname@example.org.
This article is for educational purposes only and does not constitute legal advice. If you have questions about your legal rights, responsibilities or options, you should consult with an attorney in your state.