FAQ's about a Last Will and Testament
FAQ's about a Last Will and Testament
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Faqs about a Last Will and Testament

FAQsWelcome to the Living Trust Network's frequently-asked questions (FAQs) about a Last Will and Testament.

If you don't find the answers to your questions below, then try our Glossary of Terms. If you still don't find the answers you want, you may wish to post your questions on our forums. We make every effort to respond promptly to all inquiries.

 

 

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Q:  What is a Last Will and Testament?

A:   A "Last Will and Testament" is a legal document that allows you to say who should get your property when you die. In the strictest sense, the term "Will" is a general term, while the term "Testament" applies only to dispositions of personal property. However, this distinction is seldom observed today. In fact, the terms are often used interchangeably.

Besides saying who should get your property when you die, a Will also gives you the opportunity to say who you want to be in charge of settling your estate.  It also gives you the opportunity to say who you want to serve as guardians of your minor children.  And, it gives you the opportunity to protect any money or property you give to minor children and/or other beneficiaries who are not good candidates to receive an inheritance outright; i.e., via the creation of testamentary trusts.

 

 

Q:  Who can make a Will?

A:  Every state has very strict requirements as to who can make a Last Will and Testament. Most states require that you be at least 18 years of age, although some states make an exception if you're serving in the military. Some states also have a lower age limit; for example, Louisiana's minimum age is 16 and Georgia's minimum age is 14. In addition, all states require that you be of sound mind and not under the undue influence of another person. 

For the specific requirements of each state, see State Requirements to Make a Will

 

 

Q:  How do I make a Will?

A:   In order to be valid, a Last Will and Testament must comply with the specific requirements of the state in which you are domiciled; i.e., the state of your primary residence. However, almost all states will uphold a Will that is made in a foreign state or even a foreign country as long as (1) it complies with the laws of the foreign state or foreign country in which it is made, or (2) it complies with the laws of your state of domicile.

For the specific requirements to make a valid Last Will and Testament in all 50 states, please click here.

 

 

Q:  Can I change my Will after I’ve signed it? 

A:   You can change or revoke your Last Will and Testament as often as you’d like.  There are two ways in which you can change your Will.  First, you can prepare an amendment to your Will (called a "codicil").  With a codicil, your Last Will and Testament remains in place, but one or more of its provisions are changed by the terms of the codicil.  To be valid, a codicil must be executed with the same formality as a Last Will and Testament; i.e., it must be in writing, it must be signed by you, and it must be attested by two independent witnesses.

The second way in which you can change your will is to make an entirely new one.  The new Will can be identical to the original Will, except for the changes you wish to make.  Because it is a Last Will and Testament, it will have to be made and executed with the same formalities as your original Will; i.e., it must be in writing, it must be signed by you, and it must be attested to by two independent witnesses. The new Will automatically revokes the prior Will as a matter of law.

Many professional advisors recommend making an entirely new Will whenever you wish to make a change to your existing Will.  Making changes through a codicil can get burdensome because you must keep the original Will and all the codicils to it. That’s because a codicil is simply an amendment to your existing Will. If you make an entirely new Will, then the old Will is revoked and only the new Will remains in effect. It's much easier to keep track of one document that a number of them.

 

 

Q:  What happens if I die without a Will? 

A:   If you die without a Last Will and Testament, you are said to have died "intestate."  In that case, the laws of the state in which you are domiciled at the time of your death will control the settlement of your estate and the distribution of your probate property.

The laws governing intestate estates are designed with one central purpose.  That central purpose is to pay your outstanding debts at the time of your death, then to pay the costs of administering and settling your estate, then to distribute your remaining probate property to your next of kin.  If you don’t leave a Will to let people know how you want your property distributed, the state has to do the next best thing and try to guess at what you might want done, based upon what others in your position have commonly done.

The problem is, it’s never exactly what you want.  In many states, for example, if you die without a Last Will and Testament, leaving a surviving spouse and children, your spouse will receive the first $100,000 of your probate property.  The balance will be split equally between your spouse and your children.  If you leave a surviving spouse but no children, but one or more of your parents survive you, then many states make some provision for your surviving parents as well as your spouse.  In addition, there is no provision for charitable gifts or gifts to friends or distant relatives; nor is there any differentiation among children with different needs.  That’s just the price you have to pay when you die without a Last Will and Testament.

There are other considerations as well.  For example, if you die without a Will, the state will appoint a personal representative to settle your estate.  That could be anyone, including a local attorney, a professional administrator, or a family member.  Moreover, the court-appointed representative will not have the authority to make many decisions without obtaining court approval beforehand.  If you have minor children, the court would appoint guardians for them.  There is no assurance, however, that the court will look for the same qualities in a guardian as you would have wanted.  Court-appointed guardians are also entitled to compensation for their services, which can be a very expensive proposition and consume all the money that is left for your children.

All things considered, it is never a good idea to die without a Last Will and Testament.

 

 

Q:  What does a personal representative do? 

A:   A personal representative is responsible for the administration and settlement of your estate.  If your personal representative is designated under your Will, then he or she will be called an "Executor."  In some cases, a female who becomes qualified as a personal representative is called an "Executrix."

If you die without a Last Will and Testament, the court-appointed personal representative of your estate will be called an "Administrator."  In addition, if you die with a Will but neither your designated personal representative nor any of your named successors are willing or able to serve in that capacity, then the court will appoint a personal representative for your estate.  In that case, the personal representative will be called an "Administrator, C.T.N."  The letters C.T.N. stand for "cum testamento annexo" in Latin, which means "with the Will attached."

Regardless of the designated name, a personal representative is charged with the responsibility of administering and settling your estate.  The duties include preparing an inventory of your assets and liabilities, notifying creditors to present their claims, determining the validity of claims presented, paying the debts of creditors and the expenses of administering the estate, then distributing the remaining assets to the proper beneficiaries.  A personal representative is really an agent of the probate court in settling your estate.

 

 

Q:  Does a Will avoid estate and other death taxes? 

A:   No.  However, a properly drafted Last Will and Testament may contain certain provisions that enable your estate to minimize or eliminate certain estate and/or death taxes.  It may also contain certain provisions that enable your estate to minimize or eliminate certain taxes on income earned by your estate.  It is important, therefore, that you prepare your Will with tax considerations in mind.  It’s also a good reason why you should always have your Will reviewed by an qualified estate planning attorney who is familiar with estate and death taxes as well as income taxation of estates. 

 

 

Q:  Does my Will control all of my property?

A:   No.  The only property that is disposed of by a Last Will and Testament is property that is solely owned by you at the time of your death.  If you think about it for a moment, it does make sense.  Solely-owned property is the only type of property that does not have a built-in beneficiary.  A life insurance policy has a designated beneficiary - you don’t need a Will to know who gets that money.  The same is true with annuity contracts.  Retirement plans also have designated beneficiaries, including your 401(k) plan and your IRA. 

Property held in a revocable living trust also has built-in beneficiaries.  If property is held in a revocable living trust upon your death, the trust instrument determines who gets the property.  That’s one of the primary reasons why living trusts have become so popular over the past two decades.  It’s a very good way to avoid probate.

Finally, jointly-owned property "with rights of survivorship" is another form of property ownership that has a built-in beneficiary.  When a joint owner dies, title to the entire property is automatically vested in the surviving joint owner(s) as an matter of law.  Property that is owned jointly with a spouse is presumed to be owned with rights of survivorship.  However, property owned jointly with someone other than a spouse is not presumed to be owned with rights of survivorship.  Instead, the title to the property must clearly state that the property is owned jointly with rights of survivorship to have the title pass automatically to the surviving joint owner.  If jointly-owned property is not deemed to be owned with rights of survivorship, then it is deemed to be owned as tenants-in-common.  In that case, each owner is free to transfer his or her interest in the property to any other person upon death or otherwise.  However, because property owned as tenants-in-common is essentially solely-owned property, there is no built-in beneficiary upon the death of the owner.  For a more complete discussion of how property passes upon death, please see our section entitled, "How Property Passes Upon Death."

It should be clear, then, that solely-owned property is the only type of property that becomes a problem upon the death of the owner - because there is no pre-determined beneficiary for that kind of property.  Still, all 50 states want their citizens to say who will get their solely-owned property when they die.  That’s the reason all 50 states have enacted legislation authorizing the passing of solely-owned property by a Last Will and Testament.  A Will is the instrument that allows you to designate the beneficiary or beneficiaries of your solely-owned property, and all 50 states have created probate court systems to enforce that right by validating your Last Will and Testament after you die and then insuring that your solely-owned property is actually distributed to your designated beneficiaries.  All 50 states even go so far as to designate a beneficiary for your solely-owned property if you fail to do so through a validly executed Will.  The laws that govern the designation of beneficiaries in the event you die intestate (i.e., without a Will) are known as "intestacy laws" or the "laws of descent and distribution."

 

 

Q:  Does a Will increase the cost of probate

A:   No.  In most cases, the existence of a Last Will and Testament does not increase the cost of probate.  In fact, it will often cost somewhat less to probate an estate when there is a Will (a "testate estate") because a Last Will and Testament generally excuses the Executor from posting a bond, which generally costs a fair amount of money.  It may also excuse the filing of an inventory and the obtaining of property appraisals.  A Last Will and Testament also grants broad powers of administration to an Executor, which allows the Executor to perform his or her duties without constant court approval.

In addition, when a Last Will and Testament governs the disposition of probate property, the probate courts do not have to spend as much time determining who the heirs are or where they’re located, all of which results in decreased probate fees payable by the estate.

 

 

Q:  How much money do I need to justify a Will? 

A:   A Last Will and Testament is important no matter how much money you might have. With a Last Will and Testament, you can insure that any money and property you do leave behind are distributed to your intended beneficiaries. It's also the only way to designate guardians for your minor children. In addtion, it allows you to say who should handle your final affairs and settle your estate. 

Even though all your property may pass to your designated beneficiaries other than by a Last Will and Testament (i.e., through joint-ownership, through a revocable living trust, or through life insurance and/or retirement benefits), you should always have an up-to-date Will. First, there will always be some property that will pass under your Will.

Furthermore, there are many other reasons for having a Will besides the distribution of your property, such as designating guardians for your minor children and designating a personal representative to settle your estate.

 

 

Q:  How should I go about getting a Will done? 

A:   The first step is to find out as much as you can about a Last Will and Testament, what it's designed to do, what generally goes into a Last Will and Testament, what your options are, and what help is available to you. The Living Trust Network is a good place to start because you can gain all the information you need right here, and it won’t cost you a dime.

At some point, however, you will need to engage the services of a qualified estate planning attorney. Wills are legal documents that have significant consequences for surviving family members and other loved ones. It’s one thing to create a Last Will and Testament that passes muster from a legal standpoint. It’s quite another to create a Will that accomplishes all your goals for your loved ones in an efficient and timely matter. Experienced estate planning attorneys can be invaluable in both regards.

Most people don’t deny the skills of a qualified estate planning attorney; they're mostly concerned with the cost. That’s why it’s important for you to do your homework before you see an attorney. If you know what you’re trying to accomplish, if you've taken the time to assemble your personal and financial information, and if you have a fairly good idea of what your estate plan should accomplish, then your legal fees will be reduced considerably because you’ve done a lot of the work. Your attorney will be happy too, because attorneys prefer to do legal work; i.e., advising clients. They don’t like to waste time collecting information that clients could readily obtain on their own. And, you’ll be much happier with the result because you will have been involved in your own estate planning.  To help you get started with your estate planning, we've put together a number of fillable-pdf forms that you can download to your own computer and complete on your own time.  You can find these fillable-pdf forms in our section entitled, "Personal Factfinder Forms."  When you’re finished completing these forms, you’ll have a much better understanding of your estate planning - and you’ll appreciate what you’ve accomplished.

 

 

Q:  Is it expensive to have a Will done? 

A:   That depends on how you go about it. If you do a lot of the work yourself, you can reduce an attorney’s time considerably. However, it’s difficult to say how much you’ll have to pay because there are too many variables. For example, some Wills are very complex, others are very simple. Some Wills are prepared in context with other legal documents; i.e., health care advance directives, durable powers of attorney, revocable living trusts, etc. There is no uniform fee schedule for Wills either, nor is there any correlation between an attorneys skill and experience and the fees charged. Simple Wills (those that do not contain any tax planning provisions or testamentary trusts) generally cost only a few hundred dollars but vary considerably from attorney to attorney.

The best advice is to do your homework first, then shop around for an attorney that you feel is knowledgeable and compatible with your needs. Don’t be afraid to talk with more than one attorney and don’t be afraid to talk about costs.

You can locate qualified estate planning attorneys in your local area through our Legal Services Program. Take a moment now to see what attorneys in your local area are already participating in our program. Click here.

 

 

Q:  Where should I store my Will when it’s done? 

A:   Your Last Will and Testament should be stored in a safe place - one that’s free from any potential fire, smoke or water damage. It should also be free from the possibility of theft.

If you have a fire-proof safe at home, that's a good place to store your Last Will and Testament. You should make sure, however, that your spouse or other trusted family members know the combination to the safe or where you keep the key. You might also give the combination or the key to your personal representative and/or your attorney so that someone has access to your safe.

Contrary to popular opinion, a safe-deposit box at a bank is not a bad place to keep your Last Will and Testament. Many people believe that a safe-deposit box is not a good place because the courts will freeze the box upon your death and no one will be able to get to your Will. In fact, there is no real rush to get to your Will. Most states require the Will to be presented within 30 days after death and, if it’s in your safe-deposit box, all you have to do is tell the court and it will arrange to get the Will. If you keep a copy of your Last Will and Testament at home or with your personal representative or your attorney, your family members and other loved ones will know what the Will provides.

Some people like to keep the original of their Will with their attorney for safekeeping. If you have a long-standing relationship with your attorney, that's probably as good a place as any to keep your Will. However, if you don’t have a long-standing relationship with your attorney, then it may not be a good idea. Consider how difficult it would be to get the original back if you decided to change attorneys. It’s not that the attorney wouldn’t give it back, it’s just that many people are uncomfortable telling the attorney they're going someplace else.

 

 

Q:  Is my Will still valid if I move to another state? 

A:   Yes, the U.S. Constitution requires that all states give full faith and credit to the laws of other states. So, if your Last Will and Testament is valid under the laws of the state in which it was made, then it will be honored in all other states.

In fact, many states have even passed legislation to that effect. . You can check for yourself in our section entitled, "Requirements to Make a Will."

That does not mean, however, that you should not have your Last Will and Testament reviewed by a local estate planning attorney if you move to another state. There are always some things that may need to be changed, simply because of the differences in state laws that do exist.

 

 

Q:  What if I move to another country? 

A:   If you move to another country, the "full faith and credit" clause of the U.S. Constitution won't do you much good because other countries don't have to honor it. However, the United States has treaties with many different countries that will allow Wills made in the United States to be honored in those other countries. Likewise, a Will validly made in a foreign country that has a treaty with the United States will be honored in the United States.

Still, it is always a good idea to check with local counsel whenever you move from one country to another. Even if your Last Will and Testament is honored in your new country, you can bet there will be some differences in the local laws.

 

 

Q:  What else should I do when my Will is done? 

A:   You should do a couple of things. First, you should discuss the fact that you have made a Last Will and Testament with certain family members or other loved ones. There are certain people in your life that need to know what to do in the event of your death or incapacity, so they should be told what plans you’ve made and where to find the documents that will be needed. You’ll know who these people are because they are the one’s closest to you. It might be your spouse, it might be your children, it might be a parent or a sibling, or it might be the neighbor next door.

Second, you have to decide whether you want to inform your loved ones of what your plan entails. This is a touchy subject with many people - some don’t have a problem telling everyone who gets what, others don’t want to tell anyone. Most professionals believe it’s better to tell people what you’ve done so that there won’t be any surprises, but it’s mainly a personal choice.

Finally, you must review your estate plan from time to time. Certainly, if there is a change in your personal or financial situation, a review is advisable. For example, if you get married or divorced, or if you have children, or if you move out of state, you should review your Last Will and Testament. The laws also change, so you should plan to review your estate plan at least every two years even if there haven’t been any significant changes in your life.

 

 

 

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