Creating a Last Will & Testament: a Q&A Introduction

By: Christopher Freeman
Submitted: 2007-01-17 16:23:42
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What is a Will?

A will is a legal document that can protect your assets and help minimize any disagreement or dispute over the distribution of your estate when you die. A will is created and used to control the distribution of property upon your death, to provide guidance or suggestion to the courts as to who should act as the guardian of your minor children after death, and to name the person who will manage your estate after you die. A will provides instruction for the distribution of your assets through the probate courts.

Why do I need a Will?

After you die, your assets are distributed to your heirs and beneficiaries (those named in the will) through an order of the probate court. The executor of your will (the person you name in your will) will gather up the assets and provide an inventory or list of the same to the probate court. The executor will then oversee the testator's assets and to carry out the specific requests of the testator after he dies. The executor collects and manages the assets of the deceased, collects any debts that are owed to the testator at the time of his death, pays debts owed by testator (unless the will directs otherwise), sells estate property necessary to pay estate taxes or expenses, and files all necessary court and tax documents for the estate.

What happens if I do not have a Will?

When a person dies without a will (commonly referred to as dying "intestate"), the probate court appoints a person to receive all of the claims made against the estate. The appointed person also pays creditors and then distributes all remaining property in accordance with the laws of the state. The major difference between dying with a will and without a will is that intestate estate distribution is done in accordance with pre-set state laws (i.e. the state decides who gets what and in what proportions) whereas a person with a will can distribute his or her property in accordance with the instructions provided by the will.

What makes a valid Will? To make a valid will:

- the person making the will (known as the testator) must be at least 18 years of age and be of "sound mind" - this means that the person must be able to understand the full meaning of the document.

- it must be written (except for a few uncommon circumstances).

- the testator must (in the vast majority of cases) sign the document in the presence of two witnesses, and the signature must be witnessed and notarized.

Is a Will like a Trust?

Not really. A Trust is a legal document that details how property is owned, held or transferred before the death of the person making the Trust. Since the Trust is the legal owner of the transferred property and the Trust survives the death of the testator, this transferred property does not have to go through "probate" once the person making the Trust dies (i.e. it's no longer the property of the person making the Trust).

Can I change my Will?

Yes, at any time while you are still alive. A will can be changed through a separate document to amend a will, called a "Codicil". Codicils are intended to deal with relatively minor changes to a will, not wholesale revisions. Since a Codicil must be signed and witnessed in the same way as a will, it is often preferable to have an entirely new will prepared than it is to prepare a Codicil to an existing will. To revoke a will, all that needs to be done is to execute a new will that states that all prior wills are revoked. Also, a will can be revoked without making a new one by simply by destroying it - tearing it up, burning it, defacing the will, etc. To do so, however, would leave no will in place.

Is a Will public record?

Yes and no. While the testator is alive the will is not part of any public record. When the testator dies, the will must be filed with the probate court - and it becomes a public record. However, very few people will view the will after it is filed with the probate court.

Learn more about creating Last Will and Testament documents at Standard Legal

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