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Last Will and Testament


Common Law

Last Will and Testament

Alternate Names:

A Last Will and Testament is also known as:

  • Will
  • Will and Testament
  • Last Will

What is a Last Will and Testament?

A Last Will and Testament is a legal document which allows you to control how your estate will be distributed after you pass away. A Last Will also enables you to appoint a guardian for your minor children as well as provide instructions and set aside funds for the care of any pets you may have.

Who should use a Last Will?

A Last Will and Testament should be used by anyone over the age of 18 to help avoid potential disputes or confusion regarding your estate. A Last Will is especially important for parents with minor children as it will allow you to appoint a guardian and have a say in how your children will be raised.

How do I write a Last Will and Testament?

Creating a Last Will doesn't have to be difficult. Whether you decide to use LawDepot's online software to create your Last Will and Testament or visit a lawyer, you should be prepared to address the following:

Who is the Testator

The testator is the person whose property will be distributed upon death - that's you. Female testators are often referred to as the testatrix.

Designate a Beneficiary

A beneficiary is a person or organization who will receive a gift under your Will. Designating a beneficiary allows you to control who will receive your property after you pass away and help avoid any confusion or disputes. If you don't designate any beneficiaries, the courts will distribute your estate among your surviving family according to a pre-determined formula. In that case your friends or charities would receive nothing.

Name an Executor

An executor is the person who will administer the Will according to your written terms and is sometimes referred to as a personal representative. You should choose a trustworthy and responsible person for this important task.

Provide for Children and/or Pets

If you have children who are still minors, you should name a guardian who will be willing to care for them. You may also choose to set aside funds specifically for the care of your children or pets.

Review and Sign

If you have completed your Will, it's important to carefully review the document to make sure that it is free of errors and accurately reflects your wishes. Once you have verified the Will is accurate, it is critical that you sign the document according to the laws of your state. LawDepot will provide state-specific instructions to help you execute your Will.

Why is a Last Will Important?

A Last Will allows you to give instructions on who will get your property after your death, appoint the person who will administer your estate, and appoint a guardian for any minor children you may have. If you die without a valid Will, your property will instead be distributed by a court-appointed administrator according to a pre-determined formula (defined in state law).

Without a Will, you would not be able to give your property to a non-relative or to exclude relatives. If you have no Will and there are no relatives at the time of your death, your property will go to the state.

Who can make a Last Will?

Any person of legal age (usually 18 years of age) may make a Last Will, although an exception may be made if you are married, in the military, or have been legally emancipated. Additionally, most states require that you must be of "sound mind" to make a valid Will which means:

  • You understand you are making a Will and you know what a Will is;
  • You understand your relationship to the people mentioned in your Will; and
  • You understand the types and amount of property you own and how you wish to distribute it

Can I give away all of my property in a Will?

You can give away most, but not all, of your property in a Last Will. Typically the following cannot be given away in a Will:

  • Life insurance
  • 401(k) plan assets
  • Pension plan assets
  • Retirement plan assets
  • Annuities
  • Property held in a trust
  • Matrimonial home held jointly

What is the best way to create a Will?

The best way to create your Last Will will depend on your personal circumstances. Since LawDepot's Last Will and Testament has been carefully drafted by lawyers and is ready to be customized with our proprietary software, LawDepot is ideal for anybody looking to create a strong, legally binding Will from the comfort of their own home.

Since Wills need to be periodically updated, LawDepot makes it easy to review your Will at any time because your work is saved when you create an account.

Who should I name as a guardian for my children?

When choosing a guardian you should consider the following questions:

  • Is the guardian of legal age? Your proposed guardian must be an adult.
  • Is the guardian genuinely concerned for you child's welfare?
  • Does the proposed guardian have the time and ability to care for my child?
  • Is my child comfortable around the proposed guardian?
  • Where does the proposed guardian live? Will my child be able to adapt to the area and lifestyle?

Does a Will allow me to specify how my pets will be cared for?

Yes, you can provide instructions to the executor (person administering your Will) to leave money for the upkeep of your pet(s) and ensure they will be cared for.

It is also a good idea to discuss any concerns regarding the care of your pets with trusted friends and family. Ideally you should also leave a spare house key with a person you trust to allow for expedient care of your pets in the case of an emergency.

Can I make a gift to a charity in my Will?

Yes, you can make a gift to a charitable organization in your Will. LawDepot's questionnaire will help you accurately designate your gift to ensure that your contribution will be properly disbursed.

Do I still need a Will if I already have a Power of Attorney?

Yes, a Power of Attorney only lets you give another person the authority to deal with your property while you are alive. Since a Power of Attorney will automatically end upon death, a Last Will and Testament is required in order to control how your estate is distributed after death.

What is the difference between a Last Will and a Living Will?

A Last Will is used to distribute your property after your death and cannot be used to specify what type of medical treatment you want. In contrast, a Living Will (also known as a Health Care Directive) allows you to specify your preferences for health care when you are no longer capable of giving consent yourself.

When should a Will be changed or revised?

If you marry, divorce, or have a significant change in your family situation, you should update your Will to ensure it remains valid and relevant. Furthermore, since your Last Will and Testament is an important document, it should be reviewed periodically to make sure it still reflects your wishes.

Related Documents:

  • Power of Attorney: a legal document used to grant someone you select the authority to take certain actions on your behalf.
  • Health Care Directive: a legal document containing your decisions concerning medical treatment options, in case you are ever unable to speak for yourself.
  • Codicil: a legal form used to make changes to an existing Last Will and Testament.
  • Gift Deed: a document that's used to give money or property to a person or organization with no expectations of being compensated.

Related Articles:

Frequently Asked Questions:

Last Will and Testament FAQ
Last Will and Testament Sample


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