Last Will and Testament Help Guide

Explanation of Your Last Will and Testament

Below, you will find a detailed description of each of the main sections of the last will and testament in the order that they appear in the document. Note that some of these sections may be omitted from your document depending on how you answer the relevant questions. If you choose to create a pour-over will, please review our “Pour-Over Will Help Guide” to learn about the terms included in that document.


Introductory Language

The paragraph appearing immediately after the title identifies the testator, lists the testator’s address, and states that the testator is creating this will in sound body and mind. This means that the testator has the mental capacity to understand the contents of the will and so intends to create this will. The final sentence explains that any prior wills or codicils (amendments to wills) that may exist are no longer valid after executing this will. “Executing” here simply means the testator’s act of signing the will in the presence of witnesses.

Declarations

The first section states the testator’s marital status as of the date of signing and identifies the names of any living children (biological or adoptive) that the testator may have.

Payment of Remaining Debts and Expenses

Next, the testator will direct that all of his or her remaining debts and expenses are to be repaid out of the residuary estate. The “residuary estate,” or “residue,” is the portion of the testator’s estate comprised of the assets that remain after paying the testator’s final debts and expenses and after any specific gifts named in the will have been given. By law, your legally enforceable debts must be repaid upon your death, if possible. Other expenses that need to be paid may include funeral expenses, final healthcare expenses, any costs of having the estate administered in court, and any outstanding taxes.

General Instructions

This clause instructs that any beneficiary under the will must survive, or outlive, the testator by at least 30 days to receive a gift under the will. This 30-day requirement is a common legal convention that simplifies the probate process—and the confusion that often ensues—in situations where the testator and the beneficiary may both die around the same point in time due to suffering severe injuries from a catastrophic accident.

Tangible and Intangible Personal Property

In this section the testator makes gifts to specific beneficiaries of his or her tangible and intangible personal property. “Tangible” personal property is any physical asset the testator owns besides real estate, including cars, furniture, jewelry, paintings, etc. “Intangible” personal property is any non-physical asset owned by the testator, such as bank accounts, stocks, bonds, retirement accounts, and insurance policies. If the first-choice beneficiary does not survive the testator, then the gift will go to the alternative beneficiary listed. If the alternative beneficiary does not survive the testator, then the gift will be placed into the residuary estate and pass to whatever beneficiary or beneficiaries are due to receive such property. Note that you may designate two or more co-beneficiaries to receive a gift under the will. For instance, the testator may name her spouse as the first-choice beneficiary and name all of her children as alternative co-beneficiaries to receive the gift in the event that her spouse does not survive her.

Digital Assets

The testator may specify beneficiaries to receive any of his or her digital assets. These include things like online accounts, social media profiles, photos, and other electronically stored information. All digital assets that do not go to specific beneficiaries will be placed into the residuary estate and pass to whatever beneficiary or co-beneficiaries are due to receive such property.

Estate Disposition/Residue

If the testator chooses to make a general gift of all of his or her property, then this section will name the beneficiary or co-beneficiaries to receive the testator’s entire estate. If not, then this section will identify the beneficiary and alternative beneficiary to receive the residuary estate. Again, the “residuary estate,” or simply the “residue,” is made up of the testator’s assets that remain after paying the testator’s final debts and expenses and after any specific gifts named in the will have been given. If no beneficiary survives the testator, then the residuary estate will pass to the testator’s heirs. The laws that determine the proper heirs to receive property are often complicated, but such property generally is given to the testator’s spouse or closest living blood relative.

Executors

This section appoints the executor or co-executors that will be responsible for administering and distributing the estate after the testator’s death. If the first-choice executor is unavailable or unwilling to serve, then the alternative executor named will serve. If none of the named executors are able to serve, then the court will appoint one.

Depending on your answers to the questions, the executors may be required to post a bond to secure against mishandling of the estate funds and may be required to receive reasonable compensation for their services.

Finally, the terms of this section allow the executors to utilize any expedited procedures or unsupervised processes that may be available under state law to administer the estate as quickly and efficiently as possible.

Executor Powers

Next, the last will and testament lists the powers available to the executor in administering the estate. Examples include the following powers: to sell, lease, and invest estate assets; to distribute gifts to minor beneficiaries to a minor’s guardian or to postpone payment until the minor reaches the age of majority; and to distribute gifts either in cash, in kind, or partly in cash and partly in kind. Note that this is not an exhaustive list of powers and more may be available under state law. The executor may always look online or ask the probate court if there are ever any questions as to what actions he or she may take. Also, keep in mind that, although the executors have such powers, they must always seek to carry out the intent of the testator as much as possible. Therefore, these powers should be viewed as tools for carrying out the testator’s wishes.

No Liability

The executors may not be held liable for any wrongdoing so long as they distribute assets in compliance with the will. Unforeseen complexities in administering an estate may sometimes scare good executors away from serving. This language ensures them that they will not be exposed to personal liability for trying to carry out the testator’s wishes.

Otherwise Incapacitated Beneficiary

All beneficiaries must have the requisite level of mental capacity to accept and receive gifts. Gifts left to beneficiaries who are incapacitated will be disbursed to them when they regain capacity, when they die, or when the executor so determines it is appropriate in his or her reasonable discretion.

Gifts given to a Beneficiary during My Lifetime

If a beneficiary receives a gift specified under the will during the testator’s lifetime, then such gift will be deemed to have been satisfied upon the testator’s death.

Simultaneous Death

If the testator is married, then this clause appears stating that the testator’s spouse will be deemed to have survived the testator should they both die under circumstances in which the order of their deaths is uncertain. This clause, therefore, departs from the general rule under the will that beneficiaries must survive the testator by at least 30 days to receive a gift.

Guardians of Minor Children

If the testator has minor children living (biological or adoptive), then this clause appears stating that the named guardian will receive custody of the children in the event the testator dies without a surviving spouse. An alternative guardian is appointed in case the first-choice guardian is unable to serve.

Guardian Powers

If the testator has minor children living (biological or adoptive), then this clause is included to give the guardian the same powers as a parent having legal custody of the children. The guardian is required to see to it that the children have reasonable visitation with members of their immediate family.

After-Born or Adopted Children

Should the testator have any children born or adopted after signing the will, then this clause operates to prevent the will from being invalidated and to require that such children be treated similarly as any other children already included under the will.

Intestate Disposition

Any property in the residuary estate that does not go to the beneficiary or co-beneficiaries designated to receive such property will be distributed to the testator’s heirs. This is essentially a safety net in case any property in the residuary estate is not validly disposed of by the will.

Pet Care

If you opt to include this section, then it names a person to care for one or more of the testator’s pets after the testator’s death and provides pet care instructions. You may have also chosen to provide a certain sum of money to the caregiver for the support of the pets.

Disposition of Remains

If you choose to include it, then in this section the testator sets forth his or her wishes regarding any funeral service and how his or her remains should be disposed of (e.g. by burial, cremation, etc.).

Interpretation and Captions

When construing the meaning of the terms used in the will, words will be considered to include either or both genders and to include the singular and plural. Section captions or headers are included for reference only and do not affect the meaning of the will.

Omission Acknowledgments

If you include it, this section identifies any persons that the testator specifically and intentionally means to leave out of the will (e.g. a disinherited spouse or child).

Testator’s Signature

When the testator has carefully read all of the terms of the will, he or she must sign it in the presence of at least two disinterested witnesses. This means that the witnesses should not be beneficiaries under the will or have any other conflict of interest in witnessing the signing. The testator must also have the mental capacity to understand the contents of the will and that he or she is signing it. If the testator is merely physically unable to sign, then he or she may designate someone else to sign on his or her behalf. Finally, the testator must sign freely and not under duress or undue pressure from others.

Witness Acknowledgment

The testator and the witnesses must all be at least 18 years of age and must sign in the presence of each other (everyone should see each other sign). The acknowledgment affirms their ages, that the testator is of sound mind and memory, and that the signature was not procured fraudulently.

Notary Acknowledgment

For certain states, a notary section will be attached. Although not required, it is recommended that a notary also witnesses the signing, which will help prove the authenticity of the will should it ever be challenged in court.

Self-Proving Affidavit

In states that allow it, a self-proving affidavit appears here. Although not required, it is recommended that the two witnesses and a notary sign this affidavit, which will help prove the authenticity of the will should it ever be challenged in court.


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