What is a will?
By definition, a last will, also known as a testament, is a legal document allowing the person who is writing it, also known as the testator, to choose and designate who will receive all or part of his (her) assets after death. If the situation requires it, a last will also allow the designation of a guardian for any minor children that have been in the care of the testator.
Its main purpose is to avoid a property distribution decided by state’s law that might not be in agreement with the testator’s desires and which will most surely happen if a last will is not in place.
What if I die without a will?
The absence of a written last will means that the laws of the state will decide who receives your property and how much. If you have children, generally only ½ of your property will go to your spouse and the rest might go to your child or children, parents or other close relatives.
Additionally, if you have a minor child, the state will also decide who will take care of him or her and this is another situation where you might not want to let the state make the decision for you.
Should I get a living trust instead?
A living trust means more time invested in creating it, but depending on the state you are in and the size and complexity or your property, it might be a more efficient way to take care of things. A living trust helps you avoid the probate proceeding mandatory in case of a last will, which involves your will being reviewed by a court who appoints an executor and then orders the execution of the will. With a trust fund this is not necessary, still you will have to transfer your assets into the trust after you have created it.
Will Comparison
| Specify in detail your last wishes. | Last Will Living Trust |
| Appoint a trusted person to carry out your last wishes. | Last Will |
| Specify all the details of transferring your property to the chosen beneficiaries after you die. | Last Will |
| Include the transfer of your assets into a trust in your lifetime and transfer them to the chosen beneficiaries after your death. | Living Trust |
| Include the names of the persons you trust and choose as guardians for your minor children. | Last Will Living Trust |
| Include decisions about life support medical procedures and your wishes regarding organ donation. | Living Will |
| Chose a trusted person and name it to handle your financial and legal affairs. | Power of Attorney |
| Chose a trusted person and name it to manage your healthcare. | Living Will |
What makes a will legally binding?
In order to have a legally binding last will, admitted in court, you must meet the following requirements:
- You must be mentally competent at the time of the signing.
- The writing and signing of the will must be of your own free will, without any pressure from others.
- The last will has to be signed in the presence of witnesses according the state’s laws.
What is probate?
Probate is the name given to the legal process by which a court reviews your will and decides how to divide your property. With the exception of the cases when your heirs are successfully contesting your last will, the court will follow your wishes as indicated in the testament. It is necessary especially if your estate includes real property. In some states, if the property is of minimal value and it is only personal property, probate is not always required and other legal remedies might take its place.
Can I disinherit someone?
Taking into consideration that a last will expresses your will, you can exclude anyone, but with certain limitations, such as a series of laws that have the purpose of protecting your spouse and your children. Your wish of disinherit a child or give one of them more than you give the others needs to be clearly stated in your testament.
Can I change or revoke my will after I make it?
The simplest way to revoke a last will is to intentionally destroy it, either by tearing it up or by burning it. But, this leaves you without a will. If you accidentally have destroyed your will, it will not be considered revoked. The best way and the correct way to revoke a last will is to write a new one that states that all prior testaments are not valid anymore.
What happens if you change your mind after revoking your last will and decide you liked the old one better? Because the old one is invalid and cannot be revived, the only solution is to make a new one replicating the content of the old last will and revoke the last version made.
Another way to change a last will is by using a codicil which does not revoke the entire will. Still, taking into consideration that a codicil needs to pass through the same procedure of signature as the last will, it might be easier for you to make a new will.
It is important not to make any change after you have signed your will in front of the witnesses. If you make any changes outside the legal process, you risk invalidating the whole testament.
What should I do with my last will after I sign it?
As with any other important legal document, you should keep your testament in a safe place, accessible after your death and make sure that your executor knows where to find it. In some states you can deposit your last will with the court or public records if they have the storage space, but it is not a legal requirement.
What happens to my debts after I die?
As a rule, before the distribution of your assets begins, all your debts must be paid. In other words, the distribution of your assets begins with your creditors. Exception to this rule are secured debts which allow the lender to take possession of a property or piece of property if you haven’t paid your debt (e.g. mortgages, auto loans). In this case, properties that are collateral for secured debts will be redistributed along with the debt.
What happens if your debts value more than your assets? In this case your assets will be sold and the money obtained will go to your creditors. Generally, you cannot inherit someone else’s debts, so if the deceased owed $15.000 and his property is sold with $10.000, his creditor will receive $10.000 without you having to pay him another $5.000.