The purpose of this article is to cover the basics of what a Last Will and Testament is and why you should consider having one as part of your estate plan. A Last Will and Testament, also known simply as a “will,” is a legal instrument that directs how the affairs and assets of an individual are to be handled after they pass away. Having a will is an important part of every estate plan.
What Is The Purpose Of A Last Will And Testament?
As opposed to a Trust, whose primary purpose is to avoid the court-supervised probate process, the purpose of a will is to provide the probate court with instructions on how your assets are to be distributed and how your affairs are to be handled upon your passing. A will allows an individual to make key decisions now that are in effect only after they pass away. For example, through a will, an individual can:
- Designate a certain trusted individual to act as your Personal Representative (also known as an “Executor” in some states) to administer your estate. Often this is your spouse or an adult child. Being designated as a Personal Representative takes work and you want to pick the best person for the job.
- Designate who you want to serve as guardians and conservators for your minor children. If neither parent is able to care for your children after your death, you can designate someone to care for them and someone to manage their inheritance until they reach the age of adulthood. This can be the same person or not; it is your decision.
- Give specific assets to specific individuals. For example, let’s say you want your son to have that nice Harley Davidson motorcycle because you know that he will ride it whereas your daughter will not. You can indicate this in your will as a specific bequest. The specific bequest can be an item of tangible property, a fixed amount of money, a piece of real property or any other specific asset you own.
- Designate the beneficiaries of your residuary estate. Anything that you don’t designate as a specific bequest is considered part of your residuary estate. In your will, you can designate one or more people to receive your residuary estate, as well as alternate beneficiaries in the event your designated beneficiary does not survive you to receive their share.
What Happens Without A Will?
In order to better understand the purpose of a will you need to understand what happens to those who pass away without a will. For those who pass away without a will and don’t have any other estate planning mechanisms in place, such as a properly funded Living Trust, pay-on-death accounts, beneficiary deeds, or beneficiary designations on retirement accounts, several things may happen.
First, if the court lacks instruction on how a decedent’s assets are to be distributed, their estate will pass by “intestate succession.” Intestate succession means that Arizona’s law on how a deceased person’s assets are to be distributed would be applied. This may align with the deceased person’s wishes on who is to inherit those assets, but it may not.
Second, without the guidance of a will, a court would have to follow the statute to determine who is to be named personal representative of the estate with the authority to administer and distribute the estate.
Third, if someone passes away and leaves minor children, the court would have to follow the statute to determine who has priority to be named the child’s legal guardian (assuming the other parent was not able to do so). The person the court appoints may not be who the deceased person would have selected as a guardian of their children.
Finally, if someone leaves some or all of their estate to their minor children, the court may have to appoint a conservator to manage those funds until the child becomes an adult. The person who has priority to serve in this position may not be who the deceased person would have selected to oversee the children’s inheritance.
What Is A Pourover Will?
A pourover will is used in conjunction with a Living Trust. As we explained in Part One of our series on Introduction to Estate Planning, a Living Trust is a tool to assist in probate avoidance; that is, to allow someone to express their wishes regarding the administration of their estate and the distribution of their assets without the involvement of the court. If someone has a Living Trust as part of their estate plan, then the will’s role in that plan is to “pour over” their assets into the Living Trust. From there, these assets will be transferred to the trust after their death for management/distribution in accordance with the terms of the trust.
Some people are intimidated by the process of creating a will or feel overwhelmed by the number of choices that they would need to make. Others may be afraid they would not execute a will properly and thus it would not be enforceable in court. Our role is to assist you in navigating this process.
At Donaldson Stewart, P.C., we work closely with our clients to make the process of creating an enforceable Last Will and Testament simple, quick, and effective. Regardless of how your assets are structured, and regardless of whether your objectives desires are simple or complex, we can design a will to meet your needs and express your wishes. Contact us to learn more about the role of a Last Will and Testament in your estate plan.