A Will or Last Will and Testament is a legal document that can provide for distribution of certain assets upon death, for a Guardian to assume the parental role for minor children, and sometimes for ongoing management of assets for children or disabled persons with a Testamentary Trust.
A Will is generally one of a number of legal documents that comprise an individual’s estate plan. Even if someone has a Revocable Living Trust they generally also still have a Will. Durable Powers of Attorney for medical decisions and financial decisions are also important legal documents that make up an estate plan.
A common misunderstanding is what assets are controlled by a Will upon death. A Will only controls an asset that is in someone’s name alone when they die and that does not have a beneficiary designation. A Will does not control joint bank accounts when someone is survived by a joint owner. In that case the money in the account belongs to the surviving joint account owner. If an asset is funded into a Revocable Living Trust then upon death the Trust controls what happens to the asset and who gets it and not the Will.
A Will is an estate planning tool that allows a parent to designate a Guardian who will assume the parental role for any minor children upon the death of the parent(s). Although not required, it is also practical to name an alternate Guardian in a Will in case your primary Guardian is unable to act due to disability or death.
A Will also directs how property is to be divided or managed upon someone’s death. Typically a Will also contains alternative distributions of property if a named beneficiary predeceases the person who makes the Will.
A Will can also contain a Trust known as a Testamentary Trust which can provide for ongoing management of property for a beneficiary until they reach an age selected by the person who makes the Will. The typical Testamentary Trust provides that assets may be spent on a beneficiary’s health, education maintenance and support. These Trusts also provide protection from a beneficiary’s creditors.
When someone creates a Will they need to select who will be the Personal Representative of their Estate. Formerly known as an Executor the Personal Representative is the person in charge of the Will who is responsible for carrying out your wishes and instructions under the terms of the Will. It is practical but not required to name an alternate Personal Representative.
When someone creates a Will they need to select a Trustee or co Trustees for any Testamentary Trust contained in the Will. This Trustee manages assets for the beneficiaries of the Trust. It is practical but not required to name an alternate Trustee.
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