Will and testament
A will is a legal document that states what a person wants done with their assets after they die. This article explains the main contents of most wills, the limits on a will’s legal power, and what happens when someone dies without a will. It then briefly describes the most common ways of making a legal will and how a will can be changed.
What is a will?
A will is the main legal document in estate planning. This document is also called a last will and testament.
A will says what a person wants done with their assets after they die. This includes major assets, such as a house, money, or a boat, as well as smaller ones, such as family heirlooms, photos, and books. The person making the will is called the testator.
The testator can leave their assets to family members, friends, and organizations such as charities or medical groups. These people and organizations are called beneficiaries, because they benefit from the will.
A will also names a person who is legally in charge of carrying out the terms of the will. This person is called the executor or executrix, because they are in charge of executing the wishes stated in the will. The executor is also in charge of using assets of the estate to pay off any debts, such as those from the funeral or end-of-life care.
What other things can a will do?
As well as giving out assets and naming an executor, the testator can also do the following things when making their will:
- Name a guardian for minor children. This person (or these people) will be legally responsible for taking care of any minors (or other dependents) after the testator’s death. This is typically a family member or close friend.
- Name the new owner of their pet. Pets may be left to others in a will. Unlike with other bequests, though, the testator will usually ask the beneficiary first if they are willing to take care of the pet after their death.
- State what kind of funeral arrangements and memorial service they want. A will may include instructions for the type of memorial or service to be held and what should be done with any remains—for instance, cremation or burial.
- State which assets they want used to pay off any debt. A testator may not want their precious family heirloom sold to pay for cremation costs, for example. They can state which assets they want their executor to use instead.
Does a will control what happens to all assets?
No. There are important limitations to the legal power of a will. For types of assets where the person has already named a beneficiary, that beneficiary will usually receive the asset even if the person leaves it to a different person in their will.
The most common examples are:
- Life insurance. In most cases, if an individual has named someone to receive the cash value of their life-insurance policy after they die, that person will receive it, even if someone else is named in the will. For example, let’s say Betty leaves her life-insurance benefits to her best friend Phyllis when she takes out the policy. Then Betty marries and leaves her life-insurance money to her husband in her will. When Betty dies, Phyllis, not the husband, will get the money in most cases and in most states. Betty will need to change the beneficiary on her life-insurance policy to make it go to her husband.
- Retirement accounts. The beneficiaries listed on a 401(k), IRA, or pension will receive those assets even if someone else is named as the beneficiary in a will. A person needs to separately update the beneficiaries named in their retirement accounts to match the ones in their will.
- Some bank accounts. Some bank accounts are “transfer on death” (TOD) or “payable on death” (POD) accounts. This means that when the account-holder dies, the funds go immediately and automatically to the named beneficiary, even if the account-holder has left that money to someone else in their will. The account-holder needs to make sure that the beneficiary named on the TOD or POD bank account is the same as the one named in their will.
In addition, some states have laws against disinheriting children. They will require some assets to go to the deceased person’s children even if the person hasn’t said so in their will.
What happens when someone doesn’t make a legal will before they die?
When someone dies without a will, their estate is handled by the state in which they live. This is called “dying intestate.” The state will appoint an administrator, who will give out the deceased person’s assets according to the laws of that state.
Every state has different laws about who gets which assets when a person dies without leaving a legal will. However, in many states, the deceased person’s assets will go only to legal spouses and blood relatives. This means, for example, that stepchildren will usually not receive any inheritance if their stepparent dies intestate. Long-time partners who are not legally married to the person might also receive nothing, even if they are registered as domestic partners.
For these reasons, along with many others, it is very important that everyone create a legal will.
How does a person make a legal will?
The most common way to make a will is to hire a lawyer or notary to help draw up the will. The person making the will must sign it, and usually the notary or lawyer will sign it as well (although this is not technically necessary).
Then, in most states, two witnesses need to sign the will in order for it to become legal. In many states, these witnesses need to be people who are not named as beneficiaries in the will. However, in some states, beneficiaries are allowed to be witnesses.
There are also online and do-it-yourself will forms available. This option may make more sense for people with small and simple estates. Even in these cases, experts recommend that a person get the will checked over by a notary or lawyer to make sure that it is complete and correct and will be legally valid.
Can a will be changed?
A will can and should be changed whenever the testator experiences a major change in their life. This can include when they get married or divorced, suffer the death of a spouse, or acquire a significant new asset, such as a house or an inheritance.
There are two main ways for a person to change their will:
- Make a small addition to their existing will. This is called a codicil. The person simply writes down the things they want to add. Then, like with their existing will, they need to find two witnesses (who aren’t in the will) to sign it. The codicil is considered part of the original will.
- Make a new will. For this, the person would go through the same process as for the original will. Only the most recent will is legally valid.
Experts advise anyone with a will to review it every three years, even if they have no intention of changing it.
Assets and liabilities
Decisions related to aging and the end of life
Estate and inheritance taxes
Financial plans versus estate plans
Overview of estate plans
Overview of legal documents
Protecting assets from mishandling
Protecting assets from taxes and fees
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