Wills, trusts, and estate planning is a process and set of legal tools that help an individual ensure their property is passed along as they wish when they pass away. Estate planning is how the testator ensures that their property will be distributed according to their wishes when they pass away.
An individual who creates their will is called a testator. Estate planning includes drafting a will and creating trusts that specify which individuals will inherit property in the estate.
An estate is the entirety of an individual’s wealth and assets, which may include:
- Land;
- Money;
- Insurance;
- Investments;
- Personal property;
- Real property; and
- Debts.
A will contains instructions for how the estate, or a testator’s property and assets, will be distributed after they pass away.
A will also outline what assets will be distributed to what individuals are called beneficiaries. When a testator passes away, their will is submitted to a court to be probated or proved.
Generally, the probate process begins when a will is submitted to a probate court. Probate means to distribute the deceased individual’s property according to their will’s terms.
Who Are the Main Parties Involved in an Estate Plan?
If an individual has a will as part of their estate plan, they will notice there are terms in their will that describe individuals other than themselves, typically including:
- The executor: This is the individual who the testator designates to distribute their property and other assets upon their death;
- If the testator creates a trust, this individual is referred to as a trustee;
- Beneficiaries: These are the individuals who will receive, or inherit, the property and other assets which are listed in the will;
- Other terms used for these individuals are devisees and heirs, which may include:
- family;
- friends;
- charities;
- businesses; and
- Churches; and
- Witnesses: These are uninterested parties who watch the testator sign their will and then sign the will as witnesses attesting to the fact that the testator executed the document.
What Is a Last Will?
Last will is the formal legal term for a will—the phrase last will is included in the phrase, last will and testament.
The term will refer to the distribution of the individual’s real property at death. The word testament refers to personal property distributions.
Previously, the phrase last will and testament referred to two separate documents. Today, however, most states define the term last will as the legal instrument that disposes of both real property and personal property.
What Will is Recognized as the “Last Will”?
An individual who creates a will, or the testator, may revoke their will before they pass away. It is common for an individual to make multiple wills over their lifetime.
Typically, the last will, or the will whose terms are given effect, is the most recently executed will that has not been revoked.
How Does Someone Revoke a Prior Will?
To ensure that a will is an individual’s final will, the testator must revoke all of their prior wills. There are several ways a testator may revoke their will, including physical acts, such as:
- Burning;
- Cutting;
- Mutilating; or
- Obliterating.
The testator must intend to revoke their will during the physical act. Because of this, accidental destruction of the will does not revoke it because the intent to revoke the will did not exist at the time it was destroyed.
Some states require that the entire will be revoked or destroyed. This means that if a testator physically destroys some provisions of their will while leaving others intact, their will is not considered revoked.
Some states, however, do permit partial revocation. This means that if the testator physically destroys a specific provision or provisions of their will, those will be deemed revoked.
The provisions that are not destroyed will be considered a part of the individual’s final will. In numerous states, a will can be revoked by implication.
This means that the law implies that the will has been revoked based upon the contents of a will that was drafted at a later time. If the later will contains provisions that are not consistent with the earlier will and the later will completely disposes of the testator’s property, the later will revokes the earlier will.
What Happens if a Will Cannot Be Found After Death?
If a will is retrieved from a testator’s lawyer’s office following their death or from their personal effects, that document is presumed to be their last will unless it is proven otherwise. Sometimes, a will last seen in the testator’s or their lawyer’s possession is not found after they pass away.
If the testator’s will is not located in the decedent’s last effects and the lawyer cannot locate the will, the probate court, or another individual, it will be considered lost. Traditionally, state laws presumed that a lost will was purposefully revoked.
State laws also presumed that if the will last seen in the testator’s possession is found mutilated, it was destroyed with the intent to revoke it. The presumption that a lost will is dead may be rebutted.
In order to accomplish this, the individual who was claiming the will that was lost was meant to be the testator’s final will is required to prove that:
- The will was not actually revoked;
- The will was properly executed, or signed and witnessed; and
- The will’s provisions are proven or were the testator’s intended provisions.
The conditions of a will can be proven by individuals who were present when the will was signed and who saw the provisions.
How Can I Modify a Will to Account for Changed Circumstances?
In some situations, the testator may want to modify their will because of a change in circumstances. For example, if a named beneficiary passes away before the testator, the testator may want to give that beneficiary’s property to another individual.
The creation of a new will that includes the new provision the testator wants to include is sufficient to change their will. The changed will will then be considered the final will.
It is important to note that creating a brand-new will is not a requirement. Instead, the testator can create a codicil, or amendment, to their current will.
This codicil can specify the changes that the testator wants to make. In most states, for a codicil to be valid, it must be executed with the same formalities as the will was executed with.
This means that, for example, if a state requires two witnesses to observe the testator signing the will, two witnesses must also observe the testator signing the codicil. If those witnesses are prohibited from having an interest in the will, the witnesses are prohibited from having an interest in the codicil.
There are other formalities, including:
- The testator’s signature;
- The date;
- The testator being 18 years of age or older and of sound mind when executing the will; and
- The testator makes some type of written notation that the will is being executed as the last will;
- For example, this notation may be made by writing the phrase “last will” within the will’s heading.
Do I Need a Lawyer’s Help to Create a Last Will?
If you want to create, modify, or revoke your last will, it is important to consult with a last will and testament lawyer. Your lawyer can help you create, modify, or execute your last will and testament.
It is important to have a lawyer help you with your will to ensure that it meets your state’s requirements and that your property is distributed as you wish.
