A Thorough Explanation of What a ‘Last Will & Testament’ Is

How Do Wills Work?

For centuries, last wills and testaments (commonly simplified to “wills”) have been a critical part of society. The main purpose of will are to distribute money, materials, and other possessions. Without a legal will, the control is essentially out of the hands of the deceased or the family. 

Despite the length of time wills have been around, approximately 57% of Americans do not have a will. As we’ve mentioned before, dying without a will is putting your family, your possessions, and your last wishes in the hands of the courts and out of your control. Having a last will and testament legally protects your spouse, your children, and your assets. Additionally, it ensures that a court is not deciding your affairs for you.

In order for us to truly understand how wills work, we need to first understand what a will actually is, the benefits, the consequences of not having a will, and several other factors. 

What is a will?

A will, also known as a last will and testament, is a legal document by which a person expresses their final wishes as to how their property is to be distributed at death. 

Who needs a will?

If you’re reading this, you probably need a will. In a quick synopsis, if you have people you care about or own any possessions, it will be smart to have a will. With that said, there are some who need a will more urgently than others. 

If you’re married, you need a will.

This is because your spouse is someone who is so closely tied to you that it’s important for you to put in writing whether she or he gets your assets upon your death.

Traditionally, your spouse would likely inherit your things even if you die without a will, but you shouldn’t leave that up to chance. Additionally, if you want anyone other than your spouse to receive any of your assets, you need to include that. This is because that isn’t the default.

If you have kids, you need a will.

This is because your kids are likely to inherit your things, after your spouse, but not necessarily. This means that if you want your kids to inherit after your spouse, then you need to put that in writing. This is to ensure there is no room for error or interpretation by the courts. Additionally, if you don’t want your kids to inherit, then that needs to be in writing.

Whether you want your kids to inherit your assets or not, it is likely that you have feelings about it one way or another. For this reason, it’s very important that you have a will in place so that the decision is being made by you, not the state.

Another reason why a will is important if you have kids is because you name an executor of your estate and a guardian of your children. The executor is responsible for distributing your assets, and the guardian is responsible for raising your children. Who you name as executor and as guardian is critically important to how your children inherit and how they are raised.

You can (and should) change your will over time. For example, if you have two kids, create a will, then ten years later, have another kid, you will need to update your will to include your third child.

If you have a positive net worth, you need a will.

This is because you have assets that need to be distributed when you die. It’s easier on your family and anyone else involved if you put it in writing (in a will) how you want your assets to be distributed.

Do I need a will if I’m single, young, and have no money?

If you’re single, young, have no children, and no money, you don’t need a will right away. However, if you have wishes on funeral arrangements or any other last wishes, you can make it legal by having a legal will in place.

What if my children are minors? Can I leave possessions to them?

Providing for your children in the event of a premature death takes more consideration than picking someone to care for them. Additionally, you should also consider what will happen to any money or property your children inherit from you. Who will manage it for them until they became adults?

As is the case in most of the country, minors here in Toledo may not directly inherit property. If you leave an inheritance in your will to someone under the legal age, your executor will need to spend estate resources and time to appoint a conservator to hold the assets on behalf of the minor child until he or she reaches adulthood.

As experienced probate lawyers in Toledo, we have put together a list of tips to help with ensuring your legacy is left to the person you choose, even if they’re a minor.

You can read more about leaving your inheritance to a minor here. 

What should be included in your will?

There are three main areas that should be included in your will. Those three areas are Guardianship, Assets, and Real Property.

If you’re a parent, Guardianship is likely the number one reason you are researching wills. A will is the best way to ensure your children are taken care of how you see fit. Having the guardian you choose in a legal will prevents the state choosing who they feel is the best fit for your children. 

A last will and testament allows you to control the distribution of your Assets. This includes who will receive your money, have access and control over your bank accounts, and who will receive family heirlooms. 

Transferring ownership of a home or building is considered transferring Real Property. Being clear on who is taking over the ownership of your real property can be done with a properly done will. Due to the complexities, it is important that you speak with a Will and Trust Attorney in Toledo if you wish to leave behind real property. 

Can you leave special gifts in a will?

The short answer is “Yes.” The most common special gifts that are left in a will are left to individuals, to charities, or given with a condition.

It is common to want to leave money or a gift to an individual. That can be a certain dollar amount you want to leave to a specific person, or a household item you want to leave with someone. Additionally, if you want to leave a stated dollar amount or a percentage of your estate to a charity, you can specify that in your last will and testament.

In either of those cases, you can also add a condition if you’d like. As an example, if you want to leave money to a grandchild that they only use for education, you can set that condition. Likewise, you can set a condition for charities as well. As an example, you can specify that the charity gives your funds as a scholarship only if the student accomplishes a task you specify.  

What is a will executor?

A will executor, along with the courts and your attorney, will ensure sure your last wishes are respected. It’s a good idea to ask the person you want to be the executor if they feel comfortable doing so. It is common that the executor is also an heir, but that is not required.

You can also leave aside money for the executor to cover any costs and pay for the time they will spend carrying out your last wishes. If your estate runs out of money to pay off debts, your executor will not be responsible for your debts. 

What is residuary of my estate?

The residuary of your estate is what is left after payment of your debts, taxes, special gifts, and administration fees. You can then specify if you want the residuary of your estate split equally or in the denominations you determine. 

What if my beneficiary in my will has special needs?

There are several factors to consider when you have a beneficiary with special needs. We have outlined an entire article around special needs beneficiaries. You can read more about special needs beneficiaries here.

When do I need a will?

The most accurate answer to when you need a will is before you die. However, without being able to predict when that will happen, the most common answer is “Now.”

Fear and being uncomfortable with the thought of death are the two main reasons so many Americans procrastinate with having a will drafted. In our section “Who Needs A Will,” if you fit into the groups of people who need a will, we recommend having it drafted as soon as possible. With the uncertainty of death, and the ever-pondering “what ifs,” getting your will drafted now will give you peace of mind and control over the unexpected. 

Can I update my will?

Any time there is a major change in your life, it is a best practice to update your will. Major changes are usually a marriage, divorce, or the birth of a child. Additionally, there may come a time when you want to change your beneficiaries, or add or subtract property to be devised.

For minor changes in your will, you would probably just want to make a codicil. With a codicil, you can make specific changes to certain items while leaving the rest of the will unchanged.

To have legal effect, though, a codicil has to adhere to the same formalities as a will. That means the testator has to be mentally competent and has to sign the document, and there have to be two disinterested witnesses. Handwritten updates on an attested will not suffice. In fact, it may actually cause the updates to be ignored or the will to be void.

Can a testator make a series of codicils with changes over the years?

Yes, but that can be confusing for your representative who will have to piece it all together. There can also be confusion as to what is a codicil and what is a will. If a second document does not expressly revoke the previous will in its entirety, it will be seen as a codicil. As such, the rest of the will can stand as valid. If any changes to the will become confusing, we recommend contacting a professional. They can handle the changes to ensure the legality of your will. 

If a testator has made a series of codicils, or has major changes to make to the will, it may be best just to draft a whole new will for peace of mind. These major changes may be: a new spouse or children, cutting out a beneficiary, changing family distributions, adding charitable contributions, etc. Contact your will and trust attorney for help in this area.

How do I get a will in Toledo?

Because of the complexities of probate law, we highly encourage you to speak with a lawyer in Toledo. Not only do they know the ins and outs of the law, they can ensure your will is legally filed. Call a professional probate attorney in Toledo to speak about getting a last will and testament.

Who should I use for a will in Toledo?

With over 150 years of combined experience, we are certain we can help. At Heban, Murphree & Lewandowski, LLC, we provide legal counsel to those wanting to protect their family as well as their property. If you are interested in doing so, we can help you get started by drafting a will. 

With the experience we have, we know that every situation is unique. We take the time to fully understand your wants and needs. We then help reflect those in your last will and testament.

Why should you set up a will today?

There are several reasons you should have a will. Dying without a will is putting your family, your possessions, and your last wishes in the hands of the courts and out of your control. Having a last will and testament legally protects your spouse, your children, and your assets. That ensures that a court is not deciding your affairs for you.

Here are 5 reasons you should set up your will today:

1. They are affordable and simple
2. Never know when death will happen
3. Ease the grieving process
4. Designate who is in charge
5. Designate guardianship for your children

Visit this article for more detail on why you need a will. 

Are you ready to create your last will and testament? Contact us for a free consultation to take the first step of setting up your will.

Other services we offer: Will Contests, Estate Planning, Guardianship, Wills & Trusts

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