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A will, or last will and testament, is a traditional estate planning document that is used to direct the distribution of your assets after your lifetime. A will does not distribute your assets on its own. Rather, it provides instructions as to which assets you wish to be distributed to each of your beneficiaries. A will must be probated to distribute your assets to the intended recipients.

A will is useful because its asset distributions override the defaults in your state's intestacy laws. If you do not have a valid will, however, your state's statutes dictate who will receive your assets.

The primary purposes of a last will and testament:

  • Replacing the asset distribution provisions of intestacy statutes.
  • Informing your family how you want your assets managed and distributed after your death.
  • Helping to plan for minor beneficiaries.
  • Planning for special needs beneficiaries.
  • Controlling overall inheritance timing.

Does a last will and testament distribute my assets at my death?

A last will and testament does not, by itself, distribute your assets. A will is your written instructions on how you want your property managed and distributed after your lifetime. These instructions are used to guide how your assets will be handled and who will receive them, but to do so, it must be declared valid by a probate court. As a result, your will must be probated to be legally effective to transfer your assets to the intended beneficiaries.

How does probate work?

Probate is a legal process in which a court will determine if your last will and testament is valid based on the laws of your state. During probate, the personal representative named in your will is appointed by the court to manage your estate, pay bills and distribute your assets under the court's supervision. It's important to understand that a will that has not been probated has no legal ability to transfer the title of your property.

The first step in the probate process is for the personal representative to inventory the estate's assets and liabilities. This means that they will create a list of all of accounts, property and other assets along with any debts, mortgages or loans. The personal representative then notifies the decedent's creditors, family and other beneficiaries that a probate estate has been opened. The personal representative then ensures that all estate debts are paid. The remaining assets will then be distributed to the decedent's named beneficiaries based on the will's instructions. The final step is the personal representative petitioning the probate court to close the decedent's estate.

What about wills and incapacity?

Some people make the mistake of believing that their will controls what happens to their assets in the event that they become incapacitated. The reality is that wills have no legal effect or value while you are alive. They do not authorize anyone to do anything prior to your death, and so having a will in place does not address the risks of incapacity.

Naming someone in a will as your personal representative will not provide that person with any authority while you are living. Their legal power over your assets will only come to be after your lifetime, so they will not be able to step in and manage your affairs if you were to become incapacitated.

What are the advantages and disadvantages of a last will and testament?

Advantages

  • Avoids intestacy
  • Makes wishes known
  • Provides clear title to property
  • Low front-end cost
  • Limited time needed to prepare and sign
  • Provides forum to resolve disputes with creditors and family
  • Limits time for creditors to file claims against estate

Disadvantages

  • Requires probate to be effective
  • Does not avoid need for guardianship
  • Not effective during lifetime
  • Full cost unknown during lifetime
  • Probate process can take 12-18 months
  • Personal representative has limited discretion over timing of distributions
  • Costs of probate
  • Lack of privacy

Is a last will and testament an estate plan?

No. A will alone is not a complete estate plan, as it does have any value if you were to become incapacitated. It only directs the management and distribution of your assets after your lifetime and does not authorize someone else to act on your behalf if you were to become incapacitated.

At a minimum, in addition to a will, you should have financial and health care powers of attorney. These legal documents give a person of your choosing the ability to manage your financial affairs and make medical decisions for you in case you are unable to do so for yourself due to incapacity.

Summary

A last will and testament is an important part of any estate plan. No matter your circumstances, you will be well-served to create a will. It's useful to know, however, that a will is not a complete estate plan. This is primarily because it does not provide any authority for someone to make decisions or manage assets if you were to become incapacitated. Wills also need to be probated to direct the management and distribution of your assets after your passing.

To learn more about last wills and testaments, request your free copy of "Estate Planning with a Last Will and Testament" today.

Graphic of Estate Planning with a Last Will and Testament booklet

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