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

How Do Wills Work?

Last wills and testaments (commonly simplified to “wills”) have been a critical part of society for centuries. The primary purpose of a will is 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. 

Although the length of time will 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, possessions, and 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.

To truly understand how wills work, we must first understand what a will 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 regarding how their property will be distributed at death. 

Who needs a will?

If you’re reading this, you probably need a will. In a quick synopsis, it will be wise to have a will if you have people you care about or own any possessions. With that said, some 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 you must put in writing whether they get 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. But, again, this is because that isn’t the default.

If you have kids, you need a will.

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

Whether you want your kids to inherit your assets or not, you likely have feelings about it. For this reason, you must have a will in place so that you, not the state, are making the decision.

Another reason a will is essential if you have kids is that 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. Therefore, who you name as executor and guardian is critically important to how your children inherit and how they are presented.

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 have no money, you don’t need a will immediately. However, if you have wished for funeral arrangements or any other last wishes, you can make it legal by having a legal will.

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. It would help if you also considered what will happen to any money or property your children inherit from you. Who will manage it for them until they become adults?

As is the case in most country, minors here in Toledo may not directly inherit property. Therefore, 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 they reach 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?

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

Guardianship is likely the number one reason you are researching wills if you’re a parent. 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 from choosing who they feel is the best fit for your children. 

The last will and testament allow you to control the distribution of your Assets. This includes who will receive your money, have access and control over your bank accounts, and 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 correctly done will. However, due to the complexities, you must speak with a Will and Trust Attorney in Toledo if you wish to leave behind the 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, 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 wish to leave to a specific person or a household item you want to leave with someone. Additionally, if you 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. For 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. For example, you can specify that the charity gives your funds as a scholarship only if the student accomplishes a task you select.  

What is a will executor?

A will executor, the courts, and your attorney will ensure 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 expected 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 special-needs beneficiary. 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 is when you need a will 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,” preparing your will will give you peace of mind and control over the unexpected. 

Can I update my will?

Any time there is a significant change in your life, it is a best practice to update your will. Considerable 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.

You would probably want to make a codicil for minor changes in your will. Then, with an addendum, you can make specific changes to certain items while leaving the rest of the will unchanged.

To have legal effect, a codicil must adhere to the same formalities as a will. That means the testator has to be mentally competent and sign the document, and there have to be two disinterested witnesses. Handwritten updates on an attested will not suffice. It may 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 cannot be very clear for your representative, who will have to piece it together. There can also be confusion about what a codicil is and a will. For example, 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 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 significant changes to make to the will, it may be best 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. They know the ins and outs of the law and 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 confident we can help. At Heban, Murphree & Lewandowski, LLC, we provide legal counsel to those wanting to protect their family and property. If you are interested in doing so, we can help you start by drafting a will. 

With the experience we have, we know that every situation is unique. Therefore, we take the time to understand your wants and needs wholly. 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. First, dying without a will is putting your family, possessions, and 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 five 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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